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HARVARD  THEOLOGICAL  STUDIES 


HARVARD 
THEOLOGICAL  STUDIES 


EDITED  FOR  THE 

FACULTY  OF  DIVINITY 

IN 

HARVARD  UNIVERSITY 


if  BY 

GEORGE  F.  MOORE,  JAMES  H.  ROPES, 
KIRSOPP  LAKE 


CAMBRIDGE 
HARVARD  UNIVERSITY  PRESS 

LONDON:  HUMPHREY  MILFORD 

OxTORD  University  Press 

1920 


HARVARD  THEOLOGICAL  STUDIES 

VIII 

THE 

DEFENSOR  PACIS 
OF  MARSIGLIO  OF  PADUA 

A  CRITICAL  STUDY 
EPHRAIM  EMERTON 

WINN   PROFESSOR  OF  ECCLESIASTICAL  HISTORY 
IN  HARVARD  UNIVERSITY  EMERITUS 


CAMBRIDGE 
HARVARD  UNIVERSITY  PRESS 

LONDON:  HUMPHREY  Mn.FORD 

OXVORO  Universitv  Pkess 

1920 


COPYRIGHT,  1920 
HARVARD  UXIVERSITY  PttESS 


BIBLIOGRAPHICAL  NOTE 

The  most  complete  examination  of  the  manuscripts  of  the 
Defensor  Pads  thus  far  pubUshed  is  by  an  American  scholar, 
Dr.  James  Sullivan,  now  State  Historian  of  New  York,  "  The 
Manuscripts  and  Date  of  Marsiglio  of  Padua's  Defensor 
Pads,"  in  the  English  Historical  Review,  1905,  pp.  293-307. 
Dr.  Sullivan  personally  examined  twenty  manuscripts  in  several 
European  libraries  and  drew  certain  conclusions  as  to  the  date 
of  composition  of  the  Defensor.  It  is  a  matter  of  regret  that 
other  occupations  have  prevented  him  from  carrying  on  his 
studies  to  the  point  of  preparing  a  much  needed  new  edition  of 
the  original.  Meanwhile  this  work  has  been  taken  up  by  Pro- 
fessor Richard  Scholz  of  Leipzig,  and  his  edition,  to  appear  in 
the  Monumenta  Germaniae  Historica  in  a  Section  to  be  called 
Tradatus  de  jure  imperiali  saec.  XIII  et  XIV,  may  be  expected 
shortly. 

A  brief  summary  of  the  printed  editions  is  given  by  Dr. 
Sullivan  in  an  article  on  Marsiglio  of  Padua  and  William  of 
Ockam  in  the  American  Historical  Review  for  April  and  July, 
1897.  I  have  made  use  of  the  very  imperfect  edition  of  Goldast 
in  his  Monarchiae  Romani  Imperii,  etc.,  3  vols,  fol.,  Frankfurt, 
1668,  vol.  II,  pp.  154-312,  and  also  of  Professor  Scholz's  much 
abbreviated  edition  in  usum  scholarum  in  Quellensammlung  zur 
Deutschen  Geschichte,  1914. 

No  complete  translation  from  the  original  has  ever  been  made 
into  any  modern  language,  but  partial  translations  have  ap- 
peared in  French  (before  1363),  Italian  (1363,  from  the  French), 
German  (1545),  and  Enghsh.  The  English  translation  by 
William  Marshall  was  published  in  1535  and  is  now  extremely 
rare.  There  are  three  copies  in  the  Bodleian  and  one  in  the 
British  Museum,  but  I  am  not  aware  of  any  copy  in  this 
country. 

Up  to  the  present  time  the  most  complete  and  satisfactory 
analysis  of  the  contents  of  the  Defensor  is  that  given  by  Sigmund 
Riezler  in  his  illuminating  study,  Die  literarischen  Widersacher 


BIBLIOGRAPHICAL  NOTE 

der  Pdpste  zur  Zeit  Ludwig  des  Baiers,  1874.  All  later  writers 
have  borrowed  freely  from  this,  but  its  conclusions  have  been 
modified  on  many  points  of  detail.  The  most  careful  study  of 
Marsiglio's  life  is  that  of  Professor  Baldassare  Labanca  of 
Padua,  who  writes  from  the  point  of  view  of  a  liberal  Italian 
patriot  with  a  strong  tinge  of  local  Paduan  pride :  Marsiglio  da 
Padova,  Riformatore  politico  e  religioso  del  secolo  XIV,  1882. 

Shorter  discussions  of  Marsiglio  and  related  authors  are  to 
be  found  in :  — 

Friedberg,  Emil,  Die  mittelalterlichen  Lehren  iiber  das  Verhdltniss  von 
Staat  und  Kirche,  1869.  Zeitschrift  fiir  Kirchenrecht  VIII,  pp. 
121-138. 

Bezold,  Friedr.,  Die  Lehre  von  der  Volkssouverdnetdt  wdhrend  des 
Mittelalters,  1876.    Historische  Zeitschrift  XXXVI,  pp.  343-347. 

Miiller,  Carl,  Der  Kampf  Ludwigs  des  Baiern  mit  der  Romischen 
Curia,  1879-80. 

Scaduto,  Fr.,  Stato  e  Chiesa  negli  scritti  politici  1122-131(7 .    1882. 

Guggenheim,  M.,  Marsilius  von  Padua  und  die  Staatslehre  des  Aris- 
toteles.    Historische  Vierteljahrschrift  XV  (7)  1904. 

Dunning,  W.  A.,  A  History  of  Political  Theories  Ancient  and  Medi- 
aeval, 1905,  pp.  238-244. 

Stieglitz,  L.,  Die  Siaatstheorie  des  Marsilius  von  Padua,  1914.  Bei- 
trage  zur  Kulturgeschichte  des  Mittelalters. 

Lupoid  von  Bebenburg:  de  juribus  regni  ei  imperii  Romani  tractatus 
variarum  rerum  cognitione  refertus.    Basileae,  1566. 

Meyer,  H.,  Lupoid  von  Bebenburg:  Studien  zu  seinen  Schriften,  1909. 
Studien  und  Darstellungen  aus  dem  Gebiete  der  Geschichte  VII, 
1-2. 

Valois,  Noel,  Jean  de  Jandun  et  Marsile  de  Padoue  auteurs  du  De- 
fensor Pads.  Histoire  Litteraire  de  la  France  XXXIII,  pp.  528- 
623. 

Baumann,  J.  J.,  Die  Staatslehre  des  heiligen  Thomas  von  Aquino,  1873. 

ZeiUer,  J.,  L'idee  de  Vetat  dans  S.  Thomas  d'Aquin,  1910. 

Wicksteed,  Philip  H.,  Dante  and  Aquinas,  1913. 

Cappa-Legora,  A.,  La  politico  di  Dante  e  di  Marsilio  da  Padova,  1906. 


THE  DEFENSOR  PACIS 

OF 

MARSIGLIO  OF  PADUA 


To  understand  the  importance  of  the  poUtical  doctrines  of 
Marsiglio  of  Padua  one  must  bring  them  into  relation  with 
those  of  two  of  his  not  remote  predecessors,  Thomas  Aquinas 
and  Dante  AUghieri.  Aquinas  died  in  1274,  three  or  four  years 
after  the  birth  of  MarsigUo  and  Dante  died  in  1321,  two  or 
three  years  before  the  appearance  of  Marsigho's  great  work, 
the  Defensor  Pacts.  One  might  be  tempted,  therefore,  to  speak 
of  these  three  notable  contributors  to  poHtical  theory  as  repre- 
sentatives of  contemporary  thought.  To  do  so,  however, 
would  be  to  miss  the  most  essential  quality  in  each.  Aquinas, 
here  as  elsewhere  in  his  monumental  activity,  is  the  spokesman 
of  an  epoch  in  human  history  that  within  a  short  generation 
after  him  was  gone  forever.  Dante  sounds  the  note  of  a  transi- 
tion just  beginning  to  outhne  itself  clearly  in  the  rapid  march 
of  events.  Marsiglio  is  the  herald  of  a  new  world,  the  prophet 
of  a  new  social  order,  acutely  conscious  of  his  modernness  and 
not  afraid  to  confess  it.  His  book  has  often  been  called  the 
most  remarkable  literary  product  of  the  Middle  Ages,  and  I 
am  inclined  to  accept  this  verdict.  And  yet,  even  the  name 
of  Marsiglio  is  unknown  to  most  persons  outside  the  narrow 
circle  of  students  of  political  theory.  Speaking  to  an  audience 
of  clergymen  educated  quite  beyond  the  ordinary  level  of  their 
class,  I  found  that  there  was  but  one  in  the  company  who  had 
ever  heard  Marsiglio's  name,  and  that  was  only  because  he  had 
been  a  pupil  of  mine  in  his  university  days. 

The  explanation  of  this  obscurity  is,  I  think,  not  far  to  seek. 
The  teaching  of  Marsiglio  entered  so  subtly  but  so  completely 
into  the  doctrine  of  his  successors  in  the  work  of  national  de- 
velopment and  of  church  reform  that  it  has  been  overshadowed 
by  their  greater  fame.     From  Wycliffe  to  Luther  his  influence 

1 


2  MARSIGLIO  OF  PADUA,  DEFENSOR  PACIS 

can  be  traced  with  entire  distinctness.  It  is  seen  sometimes, 
though  rarely,  in  open  acknowledgement  of  indebtedness, 
oftener  in  unmistakable  similarities  of  argument,  and  again  in 
the  unsparing  criticism  of  orthodox  opponents.  His  name  is 
the  most  hated  in  the  whole  category  of  critics  of  the  mediaeval 
order,  and  justly,  for  the  defenders  of  the  existing  system 
perceived  from  the  first  that  Marsigiio,  more  accurately  than 
any  one  before  him,  had  put  his  finger  on  the  sore  spot  of  Euro- 
pean civilization  as  worked  out  on  the  mediaeval  theory  of 
society.  The  limit  of  that  theory,  as  developed  by  Thomas 
Aquinas  in  all  his  voluminous  writing,  had  been  reached. 
Sooner  or  later  it  must  give  way  before  a  new  spii'it  of  criti- 
cism and  a  new  sense  of  power  in  social  elements  that  had 
hitherto  been  denied  their  right  of  expression.  How  soon  that 
was  to  be  no  man  in  the  early  fourteenth  century  could  foresee, 
but  the  travail  of  the  new  time  was  beginning,  and  Marsiglio's 
teaching  was  its  potent  agent. 

The  world  of  Thomas  Aquinas  was  dominated  by  a  few  great 
simple  universal  ideas,  of  which  the  life  of  man,  both  individual 
and  associated,  was  the  reflex.  At  the  heart  of  things  was  God, 
revealed  in  the  uniformity  and  harmony  of  Nature.  The 
center  and  crown  of  creation  was  Man,  to  whom  was  given  the 
rule  over  the  earth,  which  again  was  the  center  of  the  material 
universe,  served  by  the  obedient  sun  and  accompanied  by  the 
planetary  and  the  starry  host  in  tributary  homage.  Corre- 
sponding to  this  majestic  order  of  Nature,  the  associated  life 
of  man  was  also  an  image  of  ordered  unity.  It  had,  to  be  sure, 
its  varieties  of  race  and  nation  and  social  class,  but  these  varie- 
ties were  only  the  differentiations  of  an  essentially  unified 
existence.  The  one  and  only  God  had  made  one  sole  and 
sufficient  revelation  of  himself,  and  this  revelation  had  in- 
cluded a  scheme  of  social  order.  Divine  Providence  had 
chosen  for  the  moment  of  its  revelation  a  point  of  time  when 
the  world  was  all  united  under  the  one  beneficent,  peaceful 
sway  of  the  Roman  Empire,  and  had  demonstrated  its  purpose 
by  bringing  into  one  efficient  and  harmonious  whole  the  two 
dominant  forces  of  this  Empire  and  the  Christian  Church,  the 
supreme  trustees  of  its  revelation. 


MARSIGLIO  OF  PADUA,  DEFENSOR  PACIS  3 

All  history  since  the  beginning  of  Christianity  had  been  the 
further  demonstration  of  this  divine  purpose.  The  unity  of 
the  Church,  through  the  continuing  power  of  the  divine  will, 
had  been  embodied  in  the  institution  of  the  Roman  Papacy, 
the  one  single  depositary  of  the  leadership  of  Christ  through 
his  one  chosen  agent,  Peter,  the  leader  of  the  Apostles.  The 
unity  of  civil  society  had  been  secured  by  the  continuation  of 
the  Roman  imperial  power,  transferred  in  due  time  from  the 
rebellious  East  to  the  subservient  West  in  the  persons  of  suc- 
sive  rulers,  whose  imperial  claim  the  kings  of  the  earth  had 
acknowledged  with  willing  submission.  And  these  two  unities 
of  Church  and  of  State,  were  in  essence  but  one;  for,  as  the 
spiritual  is  higher  than  the  material,  as  the  sun  is  brighter  than 
the  moon,  so  was  the  spiritual  power  in  the  last  resort  superior 
to  the  temporal.  Each  was  but  an  illustration  within  its  own! 
peculiar  sphere  of  that  divine  sovereignty  under  which  by  the  I 
very  definition  of  God  all  lesser  rule  belongs. 

It  mattered  not  at  all  to  the  defenders  of  this  magnificent 
theory  that  in  fact  a  great  majority  of  Christians  refused  to 
submit  to  the  headship  it  implied.  It  was  of  no  account  that 
no  trace  of  such  a  headship  could  be  found  until  ten  generations 
of  Christians  had  passed  their  lives  under  a  totally  different 
conception  of  church  order.  It  was  convenient  to  forget  that 
as  between  the  two  branches  of  the  divine  administration  of 
western  Cliristendom  there  had  never  existed  that  harmony 
which  the  whole  theory  of  papal  headship  assumed.  All  these 
apparent  limitations  were  only  the  accidents  proper  to  all 
institutions  entrusted  to  human  hands.  The  theory  persisted, 
and  the  thirteenth  century  —  "greatest  of  Christian  centuries" 
in  the  calm  judgment  of  its  admirers  —  had  seemed  to  put  the 
seal  upon  its  triumph.  From  Innocent  III  to  Boniface  VIII 
the  Papacy  had  been  able  to  celebrate  a  series  of  victories  over 
its  secular  opponents,  the  national  governments,  the  national 
episcopates,  and  the  spokesman  for  all  these  temporal  interests, 
the  mediaeval  Empire. 

It  is  this  triumph  of  the  mediaeval  theory  of  society  that 
forms  the  background  of  the  extraordinary  activities  of  Thomas 
Aquinas.     By  whatever  other  name  he  may  be  known,  the 


4  MARSIGLIO  OF  PADUA,  DEFENSOR  PACIS 

most  significant  word  to  describe  him  is  the  one  he  himself 
suggests,  the  "Summarist."  Not  only  in  his  greatest  work, 
the  "Summa  Theologiae,"  but  throughout  his  enormous  literary 
product,  he  gives  us  as  in  a  mirror  the  reflection  of  the  fixed 
conditions  of  thought  by  which  the  society  of  his  day  was 
governed.  Contemporaries  of  his  in  the  field  of  public  and 
private  law  were  putting  forth  books  of  law  which  they  called 
''mirrors"  (Spiegel).  So  Thomas  mirrored  to  his  generation 
and  to  all  succeeding  generations,  the  philosophic,  the  religious, 
the  social,  and  the  political  ideals  of  his  time.  To  him  as  to 
the  men  of  the  thirteenth  century  in  general,  these  ideals 
seemed  to  express  not  so  much  aims  of  the  future  as  actually 
accomplished  facts.  The  ideal  seemed  to  have  taken  shape  in 
institutions  that  must  endure  forever. 

In  his  treatment  of  the  state  as  the  most  important  form  of 
/Ibuman  association  Thomas  follows  almost  completely  the  lead 
of  Aristotle.  He  approves  the  monarchy  as  the  best  type  of 
government,  because  it  offers  the  best  security  against  disorder. 
He  draws,  however,  a  sharp  line  between  the  monarch  and  the 
tyrant.  To  prevent  the  single  ruler  from  degenerating  into 
tyranny  he  would  have  him  limited  by  some  constitutional 
restraint  on  the  part  of  the  best  elements  of  the  population, 
but  he  is,  perhaps  purposely,  vague  as  to  the  precise  nature  of 
this  restraint.  His  monarch  must  be  a  "good"  man,  that  is 
he  must  have  for  his  guiding  principle  the  welfare  of  his  sub- 
jects. It  is  interesting  to  note  that  he  nowhere  discusses  the 
nature  of  the  Empire  as  distinguished  from  other  forms  of 
monarchical  government.  He  assumes  that  there  will  be 
many  different  groupings  of  men  around  many  leaders,  and 
what  he  says  as  to  the  duties  and  obligations  of  the  ruler 
applies  to  all  alike.  He  makes  no  criticism  of  the  imperial 
idea  as  such,  and  he  doubtless  assumes  the  existence  of  such  a 
coordinating  power  among  the  principalities  of  Christendom. 
Why  then  should  he  not  have  given  to  this  quite  unique  ele- 
ment in  the  Christian  commonwealth  a  treatment  proportioned 
to  its  historic  as  well  as  to  its  theoretical  importance? 

The  answer  to  this  problem  may,  perhaps,  be  found  in 

I  Thomas's  supreme  interest  in  the  Church  as  the  one  coordi- 

nating  force  needed  to  give  balance  and  harmony  to  the  poUti- 


MARSIGLIO  OF  PADUA,  DEFENSOR  PACIS  5 

cal  structure  of  the  Christian  state.  To  have  elaborated  after 
his  fashion  the  role  of  the  Empire  as  the  arbiter  and  guarantor 
of  peace  among  the  states  might  well  have  seemed  to  him  to 
be  raising  its  function  as  at  once  the  colleague  and  the  rival 
of  the  Papacy  to  the  danger  point.  Aquinas  was  not  likely  to 
forget  in  any  theoretical  idealism  the  practical  facts  of  his 
present-day  politics.  During  the  whole  period  of  his  literary 
activity  the  twin  powers  of  the  mediaeval  scheme  had  been  .  ^^ 
fighting  out  their  eternal  conflict  to  what  may  well  have  '' 
seemed  to  him  a  final  finish.  In  1250  Frederic  II,  the  embodi- 
ment of  all  that  was  most  hateful  to  the  papal  interests,  died  ^' 
defeated  and  discredited.  His  vast  plans  for  the  union  of 
Germany  with  southern  Italy  had  been  scattered  by  the  death 
of  his  son  Manfred  on  the  field  of  battle  and  of  his  grandson 
Corradino  on  the  scaffold.  All  this  had  been  accomplished  by 
the  unwearied  diplomacy  of  the  papal  administration.  So 
that,  when  Aquinas  died  in  1274  there  was  good  reason  to 
suppose  that  imperialism  had  done  its  work  and  was  ready 
to  give  up  the  struggle.  The  election  of  Rudolf  of  Habsburg 
in  the  previous  year  had  seemed  to  set  the  seal  upon  this 
conclusion;  for  his  election  was  won  at  the  price  of  a  clear 
understanding  that  henceforth  the  things  of  Caesar  were  no 
longer  to  be  confounded  with  the  things  of  God. 

That  gives  us  the  key  note  of  Aquinas's  thought  on  the  whole  - 
subject.  The  cause  of  the  long  confiict  between  the  temporal 
and  the  spiritual  as  embodied  in  the  Empire  and  the  Papacy, 
had  been  the  confusion  of  their  respective  powers.  The 
Empire  was  partly  a  divine  institution;  the  Papacy,  whatever 
disclaimers  it  might  put  forth,  was  at  least  equally  a  poUtical 
institution.  In  the  scheme  of  Aquinas  this  confusion  dis- 
appears. Aside  from  and  above  all  human  law  there  must  be 
a  divine  law.  The  purpose  of  human  laws  is  to  promote  the 
earthly  welfare  of  civil  society.  The  object  of  the  divine  law 
is  to  direct  men,  both  individually  and  socially,  toward  their 
highest  end,  the  attainment  of  everlasting  life.  The  adminis- 
tration of  this  divine  law  is  in  the  hands  of  the  Church,  and  the 
unity  necessary  for  its  efficiency  is  secured  by  the  headship  of 
the  successor  of  Peter. 

This  unity  is  necessary  in  all  matters  in  which  the  Church 


6  MARSIGLIO  OF  PADUA,  DEFENSOR  PACIS 

as  a  whole  is  interested,  especially  in  the  uniformity  of  doctrine, 
without  which  there  could  be  no  real  unity  of  structure.  In 
case  of  doubt  as  to  doctrine  it  is  the  pope  alone  who  has  the 
right  to  declare  the  truth.  Here,  almost  precisely  six  hundred 
years  before  its  formal  declaration  as  an  article  of  faith,  we 
have  the  principle  of  papal  infalhbility  definitely  enunciated. 
No  wonder  that  Aquinas  has  been  proclaimed  by  the  modern 
Papacy  as  the  chief  champion  of  the  Roman  tradition.  But 
this  is  not  the  whole  of  it.  While  Aquinas  tries  to  limit  the 
power  of  Rome  strictly  to  the  declaration  of  the  faith,  he  does 
not  hesitate  to  draw  the  inevitable  conclusion.  The  power 
which  defines  the  faith  in  general  is  obviously  the  power  which 
also  determines  in  a  given  case  whether  an  individual  has 
departed  from  the  faith.  If  then  a  ruler  over  Christian 
people  is  convicted  by  this  last  tribunal  of  having  departed 
from  the  faith,  what  is  the  effect  upon  his  relation  to  his 
people? 

The  argument  here  is  very  close.  The  Church  does  not 
punish  him  for  his  defect  of  faith;  it  only  defines  it.  Its  dis- 
cipline extends  only  to  separation  from  the  body  of  the  faithful. 
But  the  ruler  so  separated  is  placed  outside  the  order  of  right- 
eousness upon  which  rests  the  obhgation  of  his  subjects  to 
obedience.  As  soon,  therefore,  as  his  excommunication  is 
pronounced  the  subjects  are  ipso  facto  released  from  their 
allegiance.  It  is  unnecessary  to  enlarge  upon  the  enormous 
range  of  this  simple  declaration.  It  places  within  the  power 
of  one  fallible  man,  however  supported  by  the  judgment  or  the 
interests  of  other  faUible  men,  first  to  define  a  crime,  then  to 
apply  this  definition  in  a  specific  case,  and  then  to  overturn  the 
order  of  a  civil  community  by  the  simple  declaration  of  his 
decision.  It  is  based  upon  the  ghastly  proposition  that  inde- 
pendent judgment  in  regard  to  fundamental  questions  of 
religion  is  a  crime  fatal  to  the  order  of  the  civil  community  and 
therefore  to  be  repressed  by  the  civil  power.  The  crime  of 
heresy  consists  in  the  exercise  of  such  independent  judgment 
in  regard  to  religion,  and  its  definition  could  be  —  and  was  — 
indefinitely  extended  to  cover  any  form  of  offence  against  the 
dominant  power  of  the  Church  expressed  through  its  agent, 


^lARSIGLIO  OF  PADUA,  DEFENSOR  PACIS  7 

the  Vicar  of  Christ  at  Rome.  The  ruler  who  set  himself  in 
opposition  to  the  Papacy  incurred  the  imminent  risk  of  being 
declared  a  heretic  and  thus  of  losing  his  hold  upon  the  allegiance 
of  his  subjects. 

The  political  doctrines  of  Aquinas  work  out,  therefore,  to  the 
ultimate  supremacy  of  the  papal  government  over  all  the  civil 
authorities  of  Christendom.  If  they  could  ever  be  realised  the 
result  would  be  a  monstrous  theocracy  within  which  every 
independent  activity,  whether  of  the  individual  or  of  organized 
society  must  shrivel  and  perish.  That  they  had  not  been 
realized  up  to  the  time  of  Aquinas  had  been  largely  due  to  the 
unflagging  energy  of  those  representatives  of  the  imperial 
power,  men  like  Otto  the  Great,  Henry  IV,  Frederic  Barbarossa, 
and  Frederic  II,  who  had  made  themselves  the  champions  of 
all  national  interests  in  their  long  struggle  for  recognition.  The 
abandonment  of  this  championship  by  Rudolf  of  Habsburg 
threw  the  responsibility  for  maintaining  the  rights  of  civil  gov- 
ernment upon  the  several  national  kingdoms. 

In  this  new  phase  of  the  conflict  the  leadership  passes  from 
Germany  to  France.  The  final,  or  what  appeared  to  the  men 
of  Aquinas'  generation  to  be  the  final,  triumph  of  the  papal 
over  the  imperial  poHcy  had  been  brought  about  largely  through 
the  introduction  of  French  influence  into  Italy  to  counteract  the 
pressure  of  Germany.  Within  less  than  a  generation  after 
the  death  of  Aquinas  it  became  clear  that  in  thus  calHng  upon 
France  to  serve  its  cause  in  Italy  the  Papacy  had  summoned  a 
servant  likely  at  any  moment  to  turn  into  a  master,  a  master 
so  much  the  more  dangerous  as  it  was  free  from  all  the  tradi- 
tions of  theoretical  loyalty  that  had  at  times  restrained  the 
action  of  the  Empire.  Back  of  every  effort  on  the  part  of  the 
French  government  lay  the  steadily  increasing  sense  of  French 
nationality  and  a  constantly  growing  wilHngness  to  make 
sacrifices  for  it. 

By  the  close  of  that  first  generation  after  Aquinas  the  papal 
chair  was  occupied  by  a  Frenchman  and  had  been  removed 
from  Rome  to  Avignon,  there  to  remain  continuously  occupied 
by  Frenchmen  and  subject  to  the  immediate  pressure  of  French 
political  necessity  during  two  generations  to  come.     The  process 


8  MARSIGLIO  OF  PADUA,  DEFENSOR  PACIS 

of  this  transfer  does  not  here  concern  us.  Enough  that  it  was 
based  upon  the  regular  working  of  the  papal  constitutional 
mechanism  whereby  the  election  of  popes  was  entrusted  to  a 
limited  body  of  electors  appointed  by  popes  and  producing 
new  popes  after  their  own  kind  so  long  as  the  policy  of  appoint- 
ment of  these  electors  continued  the  same.  The  conventional 
phrase  "Babylonian  Captivitj^"  represents  fairly  enough  the 
feeling  of  all  those  loyal  elements  of  western  Christendom 
which  saw  in  this  situation  the  perversion  of  everything  which 
had  made  the  Papacy  its  efficient  and  honored  head. 


II 

If  the  thought  of  Thomas  Aquinas  on  the  natiu'e  of  civil  powers 
and  their  relation  to  the  supremacy  of  the  Church  was  in- 
fluenced by  the  apparent  defeat  of  the  imperial  policy  in  its 
Hohenstaufen  phase  and  the  consequent  triumph  of  the  papal 
system,  it  is  equally  true  that  the  thought  of  Dante  on  the 
same  subjects  was  profoundly  stirred  by  the  events  accom- 
panying the  transfer  of  the  papal  seat  to  France.     If  we  may 
speak  of  the  election  of  Rudolf  of  Habsburg  in  1273  as  marking 
the  end  of  the  mediaeval  Empire,  we  may  with  equal  accuracy 
think  of  the  fall  of  Boniface  VIII  in  1303  as  dating  the  collapse 
iof  the  mediaeval  Papacy.     As  the  contemporaries  of  Aquinas 
I  welcomed  the  victory  of  the  Papacy  as  fixing  forever  the  doc- 
I  trine  of  centralization  in  the  administration  of  the  Church,  so, 
I  within  a  short  generation,  men  were  deploring  the  corruption 
I  of  a  too  strongly  centralized  Papacy  and  sighing  for  a  return 
ito  the  good  old  days  of  imperial  control.     Aquinas  was  born 
a  NeapoUtan  subject,  a  citizen  of  that  Italian  state  which  was 
specifically  ''The  Kingdom"  {II  Regno).     Dante  was  the  child 
of  Florence,  the  state  of  all  others  in  Italy  which  most  fiercely 
defended  the  principle  of  democracy.     The  background  of  his 
political  thinking  was  that  furious  partisan  struggle  of  which 
he  was  himself  the  most  illustrious  victim. 

As  Dante  looked  over  the  field  of  Italian  politics  he  saw  five 
great  powers  wrestling  for  the  hegemony  of  the  peninsula. 
Milan,  Venice,  Florence,  Rome  {la  Chiesa),  and  Naples  were 


MARSIGLIO  OF  PADUA,  DEFENSOR  PACIS  9 

already  outlined  as  the  leading  states  around  which  the  lesser 
cities  were  grouping  themselves  in  ever  shifting  combinations. 
Among  these  greater  and  lesser  powers  there  were  continual 
conflicts  for  economic  or  pohtical  advantage,  but  these  more 
purely  local  conflicts  were  all  interpenetrated  by  another  great 
historic  antagonism,  that  of  the  Empire  and  the  Papacy.  The 
names  of  Guelf  and  Ghibelline  had  lost  none  of  their  actual 
significance  with  the  nominal  patching  up  of  a  peace  between 
the  two  powers.  It  is  true  that  this  greater  issue  was  often 
obscured  in  the  nearer  interests  of  party  warfare  within  city 
limits;  but  whenever  the  larger  aspects  of  Italian  relations 
came  once  more  to  the  front  it  was  always  the  signal  for  a  re- 
newal of  the  old  alignment.  The  party  groupings  of  the  old 
Hohenstaufen  days  served  again  and  agam  as  rallying  points 
for  an  opposition  which  had  its  roots  deep  down  in  the  structure 
of  mediaeval  society. 

It  was,  therefore,  inevitable  that  when  Dante,  citizen  of 
Florence,  participant  and  victim  alike  of  her  partisan  conflicts, 
came  to  reflect  upon  the  cause  of  the  evils  from  which  she  and  | 
he  both  suffered,  he  should  find  it  in  the  absence  of  a  superior  \ 
power  which  might  moderate  at  least  if  not  entirely  remove  1 
them.     By  inheritance  a  Guelf,  that  is  a  natural  defender  of   i 
the  democratic  principle  and  its  conventional  alliance  with  the 
papal  interests,  he  found  himself  thrown  by  the  convulsions 
of  party  struggle  into  the  camp  of  the  Ghibellines.     He  became' ' 
identified  henceforth  with  that  party  which  found  its  support 
mainly  in  the  feudal  aristocratic  elements  of  Italian  society  and 
which  looked  naturally  to  the  Empire  as  the  guarantor  of  its ., 
local  claims. 

The  removal  of  the  Papacy  to  Avignon,  in  other  words  the  l 
abandonment  of  its  Italian  character,  was  the  last  blow  to  an  '^ 
Italian  patriot's  devotion  to  the  doctrine  of  papal  absolutism. 
It  is  here  that  we  find  our  point  of  departure  for  a  comparison 
of  the  political  theories  of  Dante  and  Thomas  Aquinas.  Funda- 
mentally they  had  a  great  deal  in  common.  Both  were,  or 
professed  to  be,  inspired  by  the  study  of  Aristotle's  poUtical 
ideas.  To  put  this  more  accurately,  both  were  filled  with 
certain  ideal  conceptions  of  human  society,  and  when  they 


10  MARSIGLIO  OF  PADUA,  DEFENSOR  PACIS 

tried  to  put  these  into  literary  form,  both  found  in  Aristotle 
formulas  ready  to  their  hand  which  could  be  interpreted  in 
such  ways  as  would  serve  their  turn.  ''Originality,"  as  we 
use  the  word,  was  not  a  mediaeval  virtue.  To  have  put  forth 
ideas  as  one's  own  would  in  that  day  have  been  to  invite  dis- 
aster. The  only  way  to  gain  a  hearing  was  to  pile  up  authori- 
ties; the  only  precaution  needed  was  to  make  sure  that  one's 
authorities  were  sound. 

It  was,  we  may  be  sure,  not  pride  of  scholarship,  or  at  least 
not  this  alone,  that  led  men  of  the  intellectual  quality  of 
Aquinas  and  Dante  to  fill  their  pages  so  largely  with  Aristotehan 
reference  and  method  of  demonstration.  It  was  that  they 
desired  to  give  to  what  were  really  their  own  opinions  the 
required  sanction  of  acknowledged  authority.  It  was  in  every 
respect  parallel  to  their  use  of  Scripture  for  the  same  purpose. 
Probably,  in  the  case  of  Dante,  the  same  may  be  said  of  his  use 
of  "science."  The  obscure  and  bewildering  appUcations  of 
mathematical  and  astronomical  processes  to  the  movement  of 
human  affairs  had  doubtless  its  effect  in  commending  the  value 
of  the  ideas  thus  hopelessly  muddled  up  with  irrelevant  or 
misleading  conceptions. 

Dante  shares  with  Aquinas  the  general  notion  of  the  State 
as  a  necessary  organism  designed  primarily  to  maintain  among 
men  that  condition  of  ordered  peace  without  which  the  legiti- 
mate objects  of  human  desire  cannot  be  secured.  He  too 
thinks  of  human  society  as  the  reflex  of  a  divine  order.  He 
sees  the  need  of  a  divine  representation  on  earth  to  secure  the 
consecration  of  this  society  to  the  highest  ends  of  man's  exist- 
ence both  in  this  world  and  in  the  life  to  come.  He  parts 
company  with  Aquinas  at  the  point  of  considering  the  means 
by  which  this  highest  control  shall  be  administered.  Thomas, 
as  we  have  seen,  has  a  very  lofty  conception  of  the  function  of 
the  state,  but  in  the  last  analysis  the  earthly  ruler  is  subject  to 
the  constant  revision  of  his  acts  by  the  superior  power  of  the 
Church,  and  this  right  of  supervision  is  centered  in  the  one 
supreme  jurisdiction  of  the  Roman  primate.  Dante,  on  the 
other  hand,  believed  that  the  primacy  of  Rome  was  only  one 
part  of  the  divine  representation  in  the  government  of  the 


MARSIGLIO  OF  PADUA,  DEFENSOR  PACIS  11 

Christian  commonwealth.  Co-ordinate  with  it  goes,  in  his 
doctrine  of  sovereignty,  the  function  of  the  Empire,  and  this, 
not  in  virtue  of  any  right  conferred  upon  it  by  any  earthly 
sanction,  but  independently,  by  its  very  nature. 

This  doctrine  of  imperial  supremacy  is  set  forth  in  a  separate 
pamphlet  with  an  argumentative  defence  probably  convincing, 
at  least  to  the  Ghibelline  intelligence  of  Dante's  day,  and  having 
the  merit,  rather  rare  in  a  mediaeval  document,  of  entire 
clearness  in  its  main  position  The  treatise  De  Monarchia 
deals,  not  as  is  often  supposed,  with  the  question  of  monarchi- 
cal government  as  compared  with  other  forms  of  administering 
political  states,  but  with  the  problem  of  a  single  administration 
for  all  states  together.  In  other  words  it  is  a  glorification  of 
the  idea  underlying  the  Empire  of  the  Middle  Ages  as  the 
continuation  of  the  imperial  system  of  ancient  Rome.  The 
date  of  its  composition  is  uncertain,  but  it  is  altogether  prob- 
able that  it  is  to  be  set  somewhere  near  the  year  1310,  the  date 
of  the  brilliant  attempt  of  the  Luxemburg  emperor,  Henry  VII, 
to  revive  the  glorious  days  of  the  Hohenstaufen  and  to  wipe 
out  the  disgrace,  if  such  it  were,  of  the  Habsburg  compromise 
of  a  generation  previous.  As  to  Dante's  feehng  about  the 
importance  of  such  an  imperial  revival  there  can  be  no  doubt 
whatever.  He  had  appealed  to  the  Habsburger  Albert  with 
all  the  fervor  of  a  poet  and  a  patriot  to  come  down  and  rescue 
Italy  from  the  chaos  of  party  strife.  He  had  written  to  the 
Italian  cardinals  to  use  all  their  influence  to  bring  back  the 
Papacy  to  its  rightful  place  and  its  bounden  duty  toward 
the  common  fatherland.  It  is  quite  possible  that  he  was  one 
of  the  band  of  Italians  who  went  to  meet  their  ''Savior"  as 
he  descended  from  the  Alps  and  began  his  first  triumphal  pro- 
gress through  the  Lombard  plain. 

The  De  Monarchia  in  its  three  books  develops  in  logical 
order  and  according  to  the  scholastic  syllogistic  method  the 
principle  of  a  single  universal  sovereignty  for  the  world.  The 
rule  of  one  is  better  than  the  rule  of  many  because  it  conforms 
to  the  law  of  Nature  and  because  it  is  best  suited  to  the  ends 
for  which  human  society  exists.  These  ends  are  mainly  peace 
and  justice.     Peace  is  possible  only  under  the  control  of  a 


12  MARSIGLIO  OF  PADUA,  DEFENSOR  PACIS 

supreme  prince.  This  does  not  mean  that  all  other  lordships 
are  to  be  abolished.  Diversities  of  rule  are  a  necessity;  but, 
since  they  are  bound  to  produce  diversities  of  desire,  they  must 
be  regulated  by  some  superior  tribunal.  But  justice  among 
conflicting  elements  is  possible  only  to  a  power  which  has  no 
interest  in  the  questions  at  issue.  The  emperor  is  such  a  power, 
because  being  the  supreme  ruler  he  has  nothing  to  gain.  He 
represents  in  the  things  of  this  world  the  loftiest  principle  of 
Christian  charity,  whereby  he  is  able  to  maintain  peace  and  to 
distribute  justice.  So  far  Dante's  argument  for  single  rule 
follows  that  of  Thomas  and  in  general  that  of  Aristotle.  He 
concludes  this  first  part  with  a  characteristically  naif  Christian 
turn :  —  Christ  chose  for  the  time  of  his  appearing  on  earth 
the  first  moment  since  Adam  when  the  whole  world  acknowl- 
edged the  sovereignty  of  one  imperial  power. 

But  this  monarchy  belongs  by  right  to  Rome,  and  the  second 
book  goes  on  to  demonstrate  this  proposition.  Here  Dante  is 
deserted  by  his  Aristotle  and  becomes  dependent  upon  his 
own  ingenuity.  Rome  has  a  right  to  supreme  rule  because  the 
Romans  were  the  noblest  of  peoples,  as  shown  by  the  genealogy 
of  Aeneas,  who  derived  his  origin  from  all  the  noblest  sources 
of  the  ancient  world.  Rome  gained  her  power  by  miraculous 
means,  proving  the  special  care  of  God  for  her  preservation 
and  expansion.  Her  wars  were  undertaken  for  the  good  of  the 
peoples;  her  ends  were  therefore  right,  and,  the  ends  being 
right,  it  follows  that  the  means  she  employed  were  right  also. 
The  Romans  were  created  fit  to  rule,  hence  were  fulfilling  their 
destiny  and  therefore  were  right.  Supremacy  acquired  by 
single  combat  is  justly  acquired,  because  in  single  combat 
there  is  no  enmity  between  the  combatants,  but  only  a  desire 
to  seek  the  judgment  of  God.  Now  Rome  did  thus  acquire 
power,  and  therefore  had  a  right  to  it.  Finally  again,  Christ 
by  being  born  and  accepting  death  under  the  rule  of  Rome 
proved  her  right  to  rule. 

Whatever  one  may  think  of  the  value  of  this  logic,  the  point 
is  clear  enough,  and  the  third  book  cHnches  the  ''argument." 
Its  thesis  is  that  the  imperial  power  is  independent  of  all 
human  control.     From  God  alone  it  derives  its  right  to  regu- 


MARSIGLIO  OF  PADUA,  DEFENSOR  PACTS  13 

late  the  affairs  of  Christendom.  The  Empire  existed  before 
the  Church.  The  Donation  of  Constantine  to  the  See  of 
Peter,  which  Dante  of  course  in  common  with  the  mediaeval 
world  in  general  believed  to  be  a  genuine  document,  rested 
upon  this  imperial  right,  otherwise  Constantine  would  have 
been  granting  what  he  had  no  power  to  bestow.  The  alleged 
transfer  of  power  by  the  Church  from  the  eastern  to  the  west- 
ern ruler  in  the  person  of  Charles  the  Great  was  impossible 
because  there  was  no  possible  source  from  which  such  right 
of  transfer  could  have  been  derived.  Hence  the  necessity  of 
a  two-fold  leadership  of  the  Christian  commonwealth,  a  spir- 
itual and  a  temporal.  .  .  .  The  imperial  Electors  were  not 
electors  in  the  strict  sense,  but  rather  heralds  whose  function 
it  was  to  proclaim  the  decision  of  divine  Providence. 

While  thus  repudiating  in  the  most  emphatic  manner  the 
subjection  of  the  Empire  to  the  Papacy,  Dante  does  not  pro- 
pose any  remedy  in  case  of  conflict,  but  only  presents  his  ideal 
of  the  headship  of  the  world.  The  emperor  is  bound  to  show 
a  filial  regard  for  the  person  of  the  pope  in  order  that  he  may 
the  more  perfectly  fulfil  his  own  function  of  temporal  leader- 
ship. It  is  here  that  we  see  the  advance  of  Dante  beyond  the 
ideals  of  Thomas  Aquinas.  His  government  of  human  society 
is  not  a  theocracy.  Temporal  and  spiritual  administration 
are  to  be  harmonized  through  the  reaUzation  by  the  temporal 
ruler  of  his  divine  origin  and  commission.  The  unfortunate 
fact  that  this  harmony,  on  which  the  whole  structure  of  medi- 
aeval society  was  theoretically  based,  had  never  in  practice 
been  realized  had  nothing  to  do  with  the  case.  The  failure 
was  due,  not  to  the  theory  but  to  the  frailty  of  human  nature. 
The  remedy  was  now  to  go  back  to  the  pure  standards  of  peace 
and  justice  contained  in  Scripture  and  in  the  instruction  of 
the  wise  among  the  philosophers  of  the  classic  world. 


Ill 

The  complete  collapse  of  Henry  the  Seventh's  Great  Ad- 
venture in  Italy  in  the  year  1313  was  the  demonstration,  if 
one  had  been  needed,  of  the  futility  of  Dante's  dream  of  im- 


14  MARSIGLIO  OF  PADUA,  DEFENSOR  PACIS 

perial  restoration  on  the  mediaeval  basis.  It  leads  us  natur- 
ally to  a  brief  survey  of  the  political  background  of  Marsiglio 
of  Padua.  The  death  of  Henry  was  followed  by  a  divided 
election  in  Germany  A  Habsburg  candidate,  Frederic  of 
Austria,  and  an  anti-Habsburg  candidate,  Ludwig  of  Bavaria, 
divided  the  electoral  vote  between  them.  Neither  would  give 
way,  and  the  decision  was  left  to  the  ancient  arbitrament  of 
war.  A  struggle  of  eight  years  ended  in  1322  in  the  defeat  of 
Frederic  and  the  acknowledgment  of  Ludwig  by  the  German 
princes.  Confhcts  of  this  sort  had  always  afforded  to  ambi- 
tious popes  the  most  welcome  opportunities  for  asserting  their 
claims  as  arbiters  of  the  political  fortunes  of  the  Empire,  and 
Pope  John  XXII  was  not  the  man  to  let  the  chance  escape  him. 
Frenchman  as  he  was,  and  accepting  in  its  full  extent  the  ac- 
complished fact  of  the  papal  residence  in  France,  he  threw 
himself  from  the  first  with  hearty  support  on  the  side  of  Austria. 

The  ancient  weapons  that  had  served  in  the  days  of  Hilde- 
brand  and  Innocent  III  and  Frederic  Barbarossa  were  fur- 
bished up  again  for  this  new  encounter.  On  the  papal  side 
every  effort  was  made  to  show  that  the  imperial  power  was 
vaUd  only  as  it  was  confirmed  by  the  papal  sanction.  The 
imperial  champions  not  only  denied  this  and  asserted  the  prin- 
ciple of  imperial  independence,  but  went  far  beyond  it  and 
claimed  in  their  turn  rights  of  control  over  the  papal  office. 
If  this  had  been  all,  history  might  well  have  cried:  "a,  plague  o' 
both  your  houses!"  and  let  it  go  at  that.  But  what  lends  an 
entirely  new  interest  to  this  new  phase  of  the  old  conflict  is  the 
volume  of  discussion  it  called  forth  and  in  this  discussion  the 
new  emphasis  placed  upon  the  fundamental  questions  as  to 
the  essential  nature  of  the  two  parties  in  opposition,  the  State 
and  the  Church. 

The  Papacy  of  John  XXII  found  itself  confronted  by  a  very 
peculiar  alliance.  Opposition  from  the  imperial  interests  was 
to  be  expected,  but  a  still  more  dangerous  antagonist  was  de- 
veloped in  the  house  of  its  friends.  It  was  just  a  hundred 
years  since  the  papal  institution  had  taken  on  a  new  lease  of 
life  through  the  support  of  a  tremendous  popular  religious 
enthusiasm  expressing  itself  in  the  new  Mendicant  Orders  and 


MARSIGLIO  OF  PADUA,  DEFENSOR  PACIS  15 

especially  in  the  Order  of  St.  Francis.  In  the  course  of  that 
century  these  orders  had  run  through  the  usual  stages  of 
enthusiasm,  of  practical  organization,  and  of  adjustment  to  the 
standards  of  the  world  they  had  tried  to  reform.  Naturally, 
however,  this  worldlifying  of  the  Orders  had  called  out  a  re- 
action toward  the  nobler  aspirations  of  the  founders,  and  this 
idealism  had  found  expression  in  that  wing  of  the  Minorites 
known  as  the  ''Fraticelli,"  or  ''Spiritual  Franciscans."  Once 
again  the  old  battle  cry  of  ''evangeUcal  poverty"  had  been 
raised  as  the  standard  to  which  all  grades  of  the  clerical  hier- 
archy ought  to  conform.  Especially  was  this  standard  of 
unworldliness  to  be  applied  to  the  Papacy  itself,  and  this  at  a 
moment  when  in  its  safe  retreat  at  Avignon  it  was  feeding  a 
hungry  horde  of  its  own  creatures  on  the  proceeds  of  a  novel 
and  extremely  promising  system  of  taxation  on  benefices 
throughout  the  western  world !  Natural  enough,  that  a  John 
XXII  should  reply  to  such  an  audacious  suggestion  by  a  decree 
of  heresy  against  the  Fraticelli,  and  that  they  should  retort  by 
a  like  charge  against  him.  Not  that  this  bandying  back  and 
forth  of  heresy  charges  was  in  itself  of  any  great  importance. 
It  was  useful  only  as  calling  out  the  defences  on  either  side,  in 
which  the  real  issues  of  the  combat  are  revealed. 

Between  these  two  enemies  of  the  Avignon  Papacy,  the 
Empire  and  the  "radicals,"  if  one  may  so  call  them,  of  the 
Franciscan  order,  there  was  thus  prepared  the  basis  of  an  alli- 
ance that  was  to  be  of  decisive  importance  in  the  immediate 
future.  Each  turned  to  the  other  for  the  kind  of  support  which 
it  specially  needed  and  which  the  other  was  specially  capable 
of  giving.  Ludwig,  in  his  fight  for  supremacy  over  the  papal 
power,  needed  every  possible  weapon  on  the  legal  and  philo- 
sophical side  of  his  contention.  The  Fraticelli,  strong  only 
on  this  ideal  side,  needed  every  possible  security  against  actual 
physical  persecution  by  the  papal  arm.  Whatever  could  be 
done  to  show  the  extravagant  worldliness  of  the  Papacy  in  the 
strongest  light  was  in  so  far  a  contribution  toward  the  general 
clearing  up  of  the  mind  of  Europe  on  the  whole  broad  question 
of  the  relation  of  the  clerical  to  the  civil  powers. 

It  is  through  this  peculiar  alliance  that  the  services  of 


16  MARSIGLIO  OF  PADUA,  DEFENSOR  PACIS 

Marsiglio  of  Padua  were  brought  into  play.  It  seems  well 
established  that  he  was  not  a  member  of  the  Franciscan  or  of 
any  other  religious  order,  but  it  is  equally  clear  that  in  his 
studies  and  in  his  executive  function  at  the  university  of  Paris 
he  had  been  brought  into  close  relations  with  Franciscan  activ- 
ities. Especially  indicated,  though  not  positively  proven,  is 
his  connection  with  the  man  who,  more  than  any  other,  was 
coming  to  be  the  spokesman  of  that  new  philosophy  of  Nomi- 
nalism which  was  destined  to  transform  the  thinking  processes 
of  Europe  in  transition,  the  English  Franciscan,  William 
Ockham.  Precisely  what  were  the  relations  between  the  two 
has  been  the  subject  of  much  study  and  speculation.^  There 
is  no  doubt  that,  as  the  bearing  of  the  nominaUstic  teaching 
upon  the  papal  claims  became  more  apparent,  the  work  of 
Marsiglio  came  to  be  thought  of  as  the  natural  product  of  so 
perverted  a  condition  of  the  intellectual  process.  He  must, 
it  was  felt,  have  been  a  pupil  of  Ockham;  from  no  other  source 
could  such  pestilent  doctrines  have  been  derived.  In  the  con- 
demnations of  his  work  dating  from  1327  on  he  is  often  expressly 
described  as  a  follower  of  Ockham's  teaching.  On  the  other 
hand  there  is  but  slight  evidence  of  actual  collaboration  be- 
tween the  two,  and  perhaps  the  safest  conclusion  is  that  each 
influenced  the  other  in  the  way  best  suited  to  his  peculiar 
genius  and  talent.  Ockham  was  primarily  a  philosopher 
interested,  as  a  philosopher  is  bound  to  be,  in  discovering 
general  principles  of  thought  applicable  to  all  intellectual 
jvr  problems.  Marsigho  was  primarily  a  political  theorist  em- 
ployed in  defending  the  rights  of  civil  authority  against  what 
he  represented  as  encroachments  upon  these  rights  by  a  power 
outside  the  range  of  civil  control.  In  this  defence  the  principle 
of  the  new  philosophy  was  a  most  valuable  ally,  and  he  fol- 
lowed it,  not  avowedly  as  a  disciple,  but  practically,  as  one 
whose  own  mental  process  was  naturally  akin  to  that  of  the 
acknowledged  leader  of  the  school. 

Precisely  how  the  emperor  Ludwig  came  to  know  these  two 
champions  of  causes  closely  allied  to  his  own  is  obscure  but  may 

1  Sullivan,  James;    Marsiglio  of  Padua  and  William  of  Ockam.     American 
Historical  Review,  April  and  July,  1897. 


MARSIGLIO  OF  PADUA,  DEFENSOR  PACIS  17 

easily  be  guessed.  Ockham  had  identified  himself  early  with 
the  "spiritual"  wing  of  the  Franciscans.  He  was  a  notable 
member  of  the  order,  later  becoming  its  General.  It  could 
hardly  fail  that  in  the  appeals  of  the  order  to  the  protection  of 
the  Empire,  his  nam"  should  have  been  prominent  as  the  most 
vigorous  exponent  of  its  cause.  The  case  of  Marsiglio  is  a 
little  more  difficult.  Up  to  the  time  of  his  entrance  into  the 
great  conflict  he  had  been  known  only  as  a  scholar  and  univer- 
sity man,  not  identified  with  ''causes"  and  not  associated  with 
ruling  powers  anywhere.  It  is  altogether  possible  that,  having 
something  to  sell,  he  took  his  wares  to  the  market  where  they 
would  best  be  appreciated.  It  is  to  the  credit  of  the  hard 
pressed  Ludwig  that  he  recognised  promptly  the  value  of  the 
contribution  thus  offered  to  him  and  became  the  patron  under 
whom  Marsiglio  was  to  serve  during  the  brief  period  of  his 
public  activity.  The  anecdote  told  of  Ockham's  first  personal 
dealings  with  the  emperor  applies  equally  well  to  Marsiglio: 
"If  you  will  protect  me  with  your  sword"  the  philosopher  is 
reported  to  have  said,  "I  will  defend  you  with  my  pen." 

Many  attempts  have  been  made  to  show  that  the  Defensor 
Pads  was  the  joint  product  of  Marsiglio  and  a  French  colleague 
of  his  at  the  university  of  Paris,  John  of  Jandun.  The  most 
recent  of  these  is  by  M.  Noel  Valois  in  the  Histoire  litteraire  de 
la  France,  t.  xxxiii,  pp.  528-623  (1906).  His  article  is  entitled: 
Jean  de  Jandun  et  Marsile  de  Padoue  auteurs  du  Defensor  Pads. 
The  author  gives  a  detailed  account  of  the  philosophical 
treatises  which  form  the  bulk  of  Jandun's  literary  product. 
These  are  all  of  a  highly  speculative,  metaphysical  character 
and  are  not  concerned  with  political  or  ecclesiastical  problems. 
Their  tendency  is  to  a  mild  scepticism  on  the  vexed  question 
of  the  "reality"  of  general  concepts.  Indeed  it  is  not  on  any 
marked  similarity  of  views  that  M.  Valois  bases  his  opinion  as 
to  the  collaboration  of  Jandun  with  Marsiglio. 

This,  he  declares  is  a  ''fait  avereJ'  Contemporaries,  "who 
doubtless  knew  better  than  we  what  the  truth  of  the  matter 
was,"  always  couple  the  two  together.  Of  this  he  gives  four 
examples : 

1.    A  contemporary  Latin  "poem,"  De  Bavari  apostasia, 


18  MARSIGLIO  OF  PADUA,  DEFENSOR  PACIS 

edited  by  O.  Cartellieri  in  Neues  Archiv  der  Gesellschaft  fiir 
dltere  deutsche  Geschichtskunde,  Bd.  xxv,  pp.  712-715  (1899). 
The  author  does  indeed  join  the  names  of  Jandun  and  Marsiglio 
in  a  common  indictment  as  serpentini  gemini.  He  says  that 
they  wrote  codicillos,  cartulas,  et  libellos,  and  that  they  made 
false  commentaries  upon  texts  they  did  not  understand.  He 
had  heard  them  both  lecture  upon  naturalia,  but  even  then 
their  imagination  had  opened  the  way  to  contention  {dis- 
crimen).  There  is  no  mention  of  the  Defensor  Pads  and  no 
reference  to  collaboration  in  this  or  any  other  work. 

2.  The  French  continuator  of  the  Chronicle  of  Guillaume 
de  Nangis  (ed.  G^raud,  ii,  p.  74)  describes  the  reception  of 
MarsigUo  and  Jandun  at  the  court  of  Ludwig,  but  he  also 
makes  no  reference  to  the  Defensor  Pads  or  to  collaboration 
in  any  one  book.  He  quotes  as  theirs  certain  opinions  hostile 
to  the  papal  supremacy  and  says  that  Ludwig  protected  them 
reluctantly  without  endorsing  their  views. 

3.  The  judicial  examination  at  Paris  of  a  certain  Francesco 
of  Venice,  an  alleged  famulus  of  MarsigUo,  given  in  Baluze, 
Miscellanea,  ii,  p.  280  (1761).  The  young  man  says  that 
Marsiglio  and  Jandun,  and  they  alone,  composed  "a  certain 
book,"  which,  so  far  as  he  knew,  contained  no  errors  such  as 
were  charged  upon  them.  If  it  had,  he  would  not  have  failed 
to  report  them  to  the  bishop  of  Paris.  The  obvious  purpose 
of  this  deposition  was  to  clear  the  youth  himself  and  everyone 
else  except  the  two  persons  directly  charged.  In  any  case  it 
is  extremely  slight  evidence  as  to  actual  collaboration. 

4.  The  bulls  of  John  XXII  directed  against  the  emperor 
Ludwig  and  against  Marsiglio  and  Jandun  make  repeated 
reference  to  "a  certain  book"  which  they  presented  to  the 
emperor  and  which  furnished  him  support  in  his  conflict  with 
the  papal  power.  There  can  be  no  reasonable  doubt  that  the 
book  thus  referred  to  was  the  Defensor  Pads,  or  that  the  papal 
writer  beUeved  it  was  the  expression  of  opinions  held  jointly 
by  the  two  Parisian  masters.  As  proof  of  joint  composition 
such  an  estimate  cannot  go  very  far. 

That  is  the  most  that  can  be  said  for  a  participation  of  John 
of  Jandun  in  the  writing  of  the  Defensor  Pads.     On  the  other 


MARSIGLIO  OF  PADUA,  DEFENSOR  PACIS  19 

side  is  the  internal  evidence,  borne  by  every  line,  of  unity  in 
plan,  in  purpose,  and  in  style.  If  any  one  worked  with  Marsig- 
lio  it  must  have  been  in  a  very  subordinate  capacity.  A  man 
of  Jandun's  undoubted  quahty  could  hardly  have  taken  an 
important  part  in  the  work  without  leaving  far  more  distinct 
traces  of  his  activity  than  M.  Valois  has  been  able  to  show. 
In  his  brief  analysis  of  the  Defensor  he  simply  assumes 
the  double  authorship  without  attempting  to  discriminate 
in  any  way  between  the  contributions  of  the  two  alleged 
authors. 


IV 

The  facts  of  Marsiglio's  life  are  meagre  and  uncertain.  He 
was  born  in  Padua  probably  about  the  year  1270,  of  good,  but 
not  specially  notable  family.  He  left  Padua  as  a  young  man 
and  migrated  to  Paris,  the  natural  goal  of  all  intellectually 
ambitious  youths  of  his  day.  He  may  have  broken  his  journey 
by  a  visit  to  Orleans,  and  may  there  have  studied  the  elements 
of  the  Roman  Law,  though  only  slight  traces  of  a  knowledge 
of  that  law  are  visible  in  his  writings.  At  Paris  he  was  cer- 
tainly the  Rector  of  the  famous  University  in  the  year  1312, 
but  our  only  information  of  his  activity  is  in  one  or  two  docu- 
ments bearing  his  name.  He  left  Paris,  perhaps  in  the  year 
1324,  and  reached  Nuremberg  in  1326.  He  was  there  received 
with  enthusiasm  by  the  emperor,  Ludwig  the  Bavarian,  in 
whose  service  he  remains  as  long  as  we  are  able  to  trace  his 
career  at  all.  In  the  following  year  he  went  with  Ludwig  to 
Italy  as  his  most  trusted  counsellor.  He  stood  by  the  emperor 
through  the  exciting  experiences  of  the  ensuing  months,  supply- 
ing him  with  ammunition  in  his  combat  with  the  absentee 
Papacy  at  Avignon  and  witnessing  the  outward  triumph  of 
the  ideas  which  he  had  embodied  in  the  great  treatise  we  shall 
soon  have  to  examine.  He  shared  with  Ludwig  the  inevitable 
overturn  in  Roman-papal  politics  and  set  out  with  him  on  his 
return  to  Germany  in  1328.  There  he  disappears  from  our 
sight.  The  Florentine  historian  Giovanni  Villani  states  cas- 
ually (Book  X,  c.  100)  that  he  died  in  Italy  just  a  month  after 


20  MARSIGLIO  OF  PADUA,  DEFENSOR  PACIS 

leaving  Rome.'^  Much  later  local  historians  of  Padua  report 
that  he  was  reconciled  to  the  politic  pope  John  XXII  and  made 
Archbishop  of  Milan.  There  is  some  reason  to  believe  that 
the  emperor,  in  his  negotiations  with  the  pope  eight  years 
later,  promised  to  discipline  Marsiglio;   but  that  is  all. 

This  man,  whose  influence  was  felt  throughout  the  whole 
period  of  two  hundred  years  between  the  appearance  of  the 
Defensor  Pads  and  the  advent  of  Martin  Luther,  vanishes  from 
contemporary  notice  as  completely  as  if  he  had  never  put  pen 
to  paper.  His  identity  as  a  man  is  lost  in  the  one  great  work 
by  which  he  has  lived.  The  Defensor  Pads  interests  the  mod- 
ern student  in  virtue  both  of  its  contents  and  its  methods. 
What  distinguishes  it  from  its  immediate  predecessors  and 
also  from  much  of  the  product  of  the  century  and  more  follow- 
ing is  its  note  of  modernity.  It  is  the  obvious  expression  of 
opinion  of  an  individual,  fortified  it  is  true,  by  abundant  if 
not  superabundant  reference  to  authorities,  but  at  every  point 
revealing  independence  of  all  authority.  Frankly  the  work 
of  an  advocate,  expressly  intended  to  support  the  cause  of  one 
of  the  great  parties  in  a  world  struggle,  it  seeks  to  bring  this 
advocacy  of  a  party  into  relation  with  great  general  principles. 
Marsiglio  has  no  hesitation  in  using  the  first  person.  ''I  will 
now  prove,"  ''I  think,"  "I  have  demonstrated,"  are  frequent 
phrases.  Everywhere  one  feels  the  personality  of  a  thinking 
man. 

The  first  clear  impression  derived  from  the  continuous  read- 
ing of  the  Defensor  Pads  is  that  it  is  all  of  one  piece.  It  begins 
with  definitions,  moves  on  to  the  application  of  these  defini- 
tions to  specific  instances,  and  concludes  by  bringing  these 
specific  cases  again  into  their  proper  subordination  to  defini- 
tion. Continually  there  is  reference  both  backward  and 
forward,  showing  that  before  the  work  left  the  author's 
hands  it  was  thoroughly  reviewed  and  cast  into  one  completed 
whole.     Its  Latinity  would  make  the  ghost  of  Cicero  weep, 

'  M.  Noel  Valois,  in  the  article  referred  to  above,  makes  the  ingenious  sugges- 
tion that  the  person  whose  death  is  reported  by  Villani  is  not  Marsiglio,  but  John 
of  Jandun,  who  disappears  at  this  time  and  to  whom  the  abusive  epithets  of  the 
Florentine  chronicler  apply  equally  well. 


MARSIGLIO  OF  PADUA,  DEFENSOR  PACIS  21 

but  it  has  the  primary  merit  of  expressing  quite  precisely  the 
author's  thought.  There  are  very  few  passages  the  meaning 
of  which  does  not  become  clear  when  one  reads  them  in  the 
light  of  all  the  rest.  The  badness  of  the  Latin  comes  from  its 
nearness  to  the  thinking  process  of  the  writer,  in  other  words 
from  his  modernness,  and  this  only  brings  him  so  much  the 
nearer  to  our  own  ways  of  putting  things.  Such  Latin  as  this 
any  one  of  us  might  write  if  he  were  well  grounded  in  vocabu- 
lary and  proportionally  indifferent  to  syntax. 

Especially  notable  is  his  departure  from  the  favorite  mediae- 
val syllogistic  method.  Occasionally  he  drops  into  it  with  a 
casual  reference  to  a  major  or  a  minor  premise,  but  in  gen- 
eral his  reliance  is  not  upon  the  formal  soundness  of  Ip^cal  \  -^  ^ 
propositions,  but  upon  the  inherentjbruth  or  the  self-evident  \ 
common  sense  of  his  ideas.  His  process  is  fore-shadowed 
by  the  division  of  his  work  into  three  "dictiones/'  i.  e.  state- 
ments. He  does  not  offer  subjects  for  argument;  he  makes 
statements,  and  then  proceeds  to  demonstrate  them  by  ex- 
planation and  elaboration.  He  is  anxious,  not  so  much  to 
prove  his  point  by  contentious  discussion  as  to  present  it  in  a 
variety  of  lights  and  then  leave  it  to  the  fair  judgment  of  the 
reader's  good  sense  and  right  intention.  It  is  this  method 
which  has  brought  upon  Marsiglio  the  reproach  of  vain  repeti- 
tion, and  it  is  true  that  he  does  repeat  a  good  deal.  A  reader 
concerned  only  with  the  main  argument  would  find  this  an- 
noying, but  examined  carefully  it  does  not  appear  quite  vain. 
Each  repetition  occurs  in  connection  with  some  new  way  of 
presenting  the  given  thought,  and  the  long  result  is  not  to  ^ 
confuse  but  to  clarify. 

It  would  be  of  interest  to  know  whether  the  Defensor  Pads 
was  written  on  the  express  commission  of  the  emperor  Ludwig 
the  Bavarian  or  was  the  outcome  of  Marsiglio's  independent 
thought  and  was  then  offered  to  the  emperor  as  the  patron 
most  likely  to  find  it  of  service  and  to  reward  it  most  hand- 
somely. The  fact  that  it  is  formally  addressed  to  Ludwig 
gives  no  indication  on  this  point;  for  if  accepted  by  him  it 
would  certainly  under  any  circumstances  have  been  fitted  with 
an  appropriate  dedication.     On  the  other  hand,  in  the  dedica- 


22  MARSIGLIO  OF  PADUA,  DEFENSOR  PACIS 

tion  as  it  stands  there  is  no  hint  of  a  commission,  and  I  inchne 
to  think  that  Marsigho's  profession  is  an  honest  one  that  he 
is  moved  'Ho  commit  these  opinions  to  writing"  as  a  loyal 
''son  of  the  city  of  Antenor  (Padua),  by  love  of  truth-telling, 
by  zealous  devotion  to  his  fatherland  and  his  fellow-citizens, 
by  pity  for  the  oppressed  and  a  desire  to  save  them  and  to 
recall  oppressors  from  the  error  of  their  ways,  and  to  rouse 
those  who  permit  such  things  when  they  ought  and  can  prevent 
them,  especially  the  emperor  as  the  servant  of  God. .  .after 
long,  close,  and  diligent  examination,  in  the  hope  thereby  to 
be  of  assistance  to  you  (the  emperor)  in  your  efforts  to  suppress 
these  evils  and  in  other  ways  to  serve  the  public  good." 

He  proposes,  with  God's  help,  to  set  forth  only  the  one 
peculiar  cause  of  the  present  conflict:  "For  to  reiterate  the 
nature  and  number  of  those  causes  which  Ai'istotle  enumerates 
would  be  superfluous;  but  from  this  cause,  which  Aristotle 
could  not  know  and  which  no  one  since  his  time  has  tried  to 
set  forth,  we  hope  so  to  lift  the  veil  that  it  may  henceforth 
readily  be  banished  from  all  civil  communities,  and  when  this 
is  accomphshed  that  rulers  and  people  of  good  will  may  live 
in  peace,  the  supreme  desire  of  all  men  in  this  world  and  the 
loftiest  goal  of  human  action."  This  one  pecuhar  cause  of 
strife  is  the  existence  of  the  corrupt  Church  under  the  papal 
administration. 

Marsigho  has  been  further  accused  of  inconsistency  and 
contradiction.  I  cannot  find  this  charge  substantiated  by 
facts.  If  his  definitions  are  understood  and  accepted,  his 
statements  hold  together  with  a  quite  remarkable  consistency. 
From  beginning  to  end  there  is  no  variation  on  essential  points. 
The  third  book,  which  he  calls  "Conclusions,"  sums  up  the 
results  of  the  first  and  second  with  continuous  references  to 
specific  passages  binding  the  whole  together.  The  most  strik- 
ing case  of  apparent  contradiction,  the  defence  of  democracy 
and  at  the  same  time  the  advocacy  of  the  imperial  rights,  dis- 
appears when  one  follows  carefully  Marsiglio's  analysis  of  the 
imperial  office  as  the  representation  of  the  ultimate  right  of 
the  people. 


MARSIGLIO  OF  PADUA,  DEFENSOR  PACIS  23 


With  these  preliminary  remarks  we  are  prepared  to  follow 
the  course  of  Marsiglio's  thought  as  nearly  as  possible  in  the 
order  in  which  it  is  presented  in  the  work  itself.  The  first  I  ^'^^ 
book  is  devoted  to  a  discussion  of  the  principle  of  the  State,  [ 
the  second  to  an  examination  of  the  orignTand  development 
of  the  Church,  its  appropriation  by  the  Roman  papal  system, 
and  its  relation  to  the  civil  powers.  The  third  is  the  brief 
summary  of  conclusions  already  mentioned.  Marsiglio's  first 
care  is  so  to  define  his  terms  that  there  shall  be  no  doubt  in 
what  sense  he  is  using  them.  Like  his  predecessors  he  bor- 
rows the  Aristotelian  formulas  as  far  as  they  suit  his  purpose. 
The  State  is  a  living  organism,  designed  to  secure  to  men  those 
guarantees  of  order  and  the  free  development  of  capacity  which 
shall  lead  to  their  highest  good.  Rulers  there  must  be,  but 
they  are  subordinate  to  the  control  of  law.  The  definitions  of 
law  give  us  an  excellent  illustration  of  MarsigUo's  analytical 
process.  Law  in  its  first  meaning  is  a  natural  inclination 
toward  a  certam  action^r  feeling,  as  for  instance,  when  Paul 
says  (Rom.  7,  23),  "I  see  a  different  law  in  my  members 
warring  against  the  law  of  my  mind."  Secondhj,  law  means  a 
form  or  model  in  the  mind  for  something  to  be  made,  as  in 
Ezekiel  (43,  12f.),  "Behold,  this  is  the  law  of  the  house;  and 
these  are  the  measures  of  the  altar."  Thirdly,  law  is  a  rule  for 
such  human  actions  as  have  reference  to  reward  or  punishment 
in  the  life  to  come.  In  this  sense  the  Mosaic  law  is  called 
"law"  in  some  of  its  parts,  and  the  Gospel  law  is  so  called  in 
its  entirety.  In  this  sense  also  all  ''sects,"  as  for  instance  that 
of  Mahomet  or  the  Persians,  have  ''laws,"  though  only  the 
Mosaic  and  the  Christian  contain  the  truth.  Fourthly,  and 
more  widely  accepted,  is  the  meaning  of  law  as  the  whole 
body  of  opinion  as  to  what  is  right  and  expedient  in  civil  affairs 
and  what  is  opposed  to  this  opinion.  Under  this  head  may 
be  distinguished  a  theoretical  and  a  practical  division,  and  the 
latter  is  to  be  taken  as  the  definition  of  law  in  the  strictest 
sense,  because  it  imphes  behind  the  theoretical  principle  a 


V\V^- 


24  MARSIGLIO  OF  PADUA,  DEFENSOR  PACIS 

praeceptum  coactivum,  a  coercive  sanction,  which  alone  can 
give  effect  to  the  principle. 
^  I    In  this  definition  of  law  as  a  principle  of  right  supported  by 
"^  '/the  force  necessary  to  put  it  into  execution  we  have  the  key- 
/note  of  Marsiglio's  whole  argument.     It  is  only  the  power 
which  has  this  coercive  jurisdiction  that  can  properly  be  en- 
trusted with  the  application  of  law,  and  the  whole  thesis  of 
the  Defensor  Pads  turns  upon  the  distinction  between  the 
V  secular  and  the  spiritual  powers  in  this  respect.  fHis  grievance  | 
I  is  the  invasion  of  the  rights  of  secular  authority  by  powers  }* 
which  are  essentially  spiritual  and  ought,  therefore,  to  be 
restricted  to  the  exercise  of  spiritual  functions?^  u^he  remedy 
is  to  be  found  in  drawing  as  sharply  as  possible  the  lines  of 
division  between  the  two  types  of  authority  which  have  be- 
come obscured  partly  through  the  persistent  aggression  of  the 
clerical  and  partly  through  the  ignorance  or  indifference  of  the 
lay  elements  of  the  Christian  society. 

But  now,  whence  comes  this  law  which  is  to  hold  the  balance 
amid  the  conflicting  passions  of  a  human  community?  In  the 
answer  to  this  question  we  find  the  most  striking  feature  of 
Marsiglio's  work.  Without  hesitation  he  declares  that  the 
^^\  source  of  law  is  to  be  found,  not  in  any  divine  right  of  rulers, 
not  in  any  superior  wisdom  of  any  class  of  society,  but  in  the 
-whole  body  of  citizens. 

"We  declare  that  according  to  the  Truth  ^  and  to  the  opin- 
ion of  Aristotle,  the  Lawgiver,  that  is,  the  primary,  essential 
and  efficient  source  of  law,  is  the  People,  that  is  the  whole 
body  of  citizens  or  a  majority  of  them,  acting  of  their  own  free 
choice  openly  declared  in  a  general  assembly  of  the  citizens  and 
prescribing  something  to  be  done  or  not  done  in  regard  to  civil 
affairs  under  penalty  of  temporal  punishment.  I  say  a 
majority,  taking  account  of  the  whole  number  of  persons  in 
the  community  over  which  the  law  is  to  be  exercised.  [It 
makes  no  difference]  whether  the  whole  body  of  citizens  or  its 
majority  acts  of  itself  immediately  or  whether  it  entrusts  the 
matter  to  one  or  more  persons  to  act  for  it.     Such  person  or 

^  I  understand  the  word  Veritas  to  be  used  here  and  in  many  other  passages 
as  sjTionyTnous  with  Gospel. 


V\' 


MARSIGLIO  OF  PADUA,  DEFENSOR  PACIS  25 

persons  are  not  and  cannot  be  the  Lawgiver  in  the  strict  sense, 
but  only  for  a  specific  purpose  and  at  a  given  time  and  on  the 
authority  of  the  primary  lawgiver."     Marsiglio  seems  to  be 
guarding  himself  thus  early  in  his  inquiry  against  the  charge 
afterward  made  against  him  that  in  emphasizing  the  rights  of       ^ 
the  people  he  was  in  so  far  minimizing  the  right  of  the  emperor 
whose  cause  he  was  nevertheless  defending.     His  point  is  that,     j 
within  the  scope  of  the  powers  given  him  by  the  people,  the 
ruler  cannot  lawfully  be  interfered  with  by  any  other  authority    ' 
whatsoever. 

The  phrase  here  translated  by  the  word  '* majority"  {pars  ^ 
valentior)  has  been  the  subject  of  much  discussion.  Some 
writers  have  insisted  that  Marsiglio  meant  by  it,  not  a  numer- 
ical majority,  but  the  more  competent  part  of  the  body  of 
citizens.  I  am  convinced,  however,  by  examining  a  great 
number  of  cases,  that  he  was  in  truth  a  champion  of  the  mod- 
ern idea  of  majority  rule  as,  on  the  whole,  the  best  expression 
of  the  will  of  the  whole  community.  In  connection  with  the 
words  pars  valentior  he  frequently  adds  some  further  explana- 
torj'^  phrase  which  seems  to  indicate  a  numerical  use,  and  the 
same  idea  is  confirmed  by  the  spirit  of  many^oTTiis  references 
to  the  political  sense  of  the  lower  orders  of  the  people.^ 

For  example,  speaking  of  the  lawmaking  process,  he  says: 
"The  truth  of  a  proposition  is  more  accurately  judged  and  its 
usefulness  to  the  community  more  carefully  taken  into  account 
when  the  whole  body  of  citizens  apply  their  intelligence  and 
their  feeling  to  it.  For  the  greater  number  (major  pluralitas)  a  , 
can  detect  a  fault  in  a  proposed  law  better  than  any  part  of  |  ^  "v 
them,  as  every  corporate  whole  is  greater  in  mass  and  in  value  1 
{mole  atque  virtute)  than  any  one  of  its  separate  parts."  Mar- 
siglio seldom  mentions  the  universitas  civium  without  adding, 
''or  its  pars  valentior.''  Sometimes  he  uses  valentior  multi- 
tudo  or  pluralitas.  He  enlarges  at  great  length  on  the  impor- 
tance of  giving  to  all  citizens  some  share  in  the  government; 
he  dwells  upon  the  capacity  of  the  humblest  to  do  his  part; 
but  he  nowhere  describes  any  higher  group  as  having  special 
qualifications  for  citizenship.  If  by  pars  valentior  he  had 
meant  "the  more  competent"  or  "the  more  highly  placed" 


WfV 


26  MARSIGLIO  OF  PADUA,  DEFENSOR  PACIS 

or  "the  more  responsible,"  in  other  words  any  kind  of  an 
aristocracy,  it  is  hardly  conceivable  that  he  should  not  have 
followed  his  invariable  practice  and  given  a  precise  definition 
of  his  meaning. 

Speaking  of  the  right  to  call  a  council  (ii.  21)  he  says  that 
this  belongs  to  the  Lawgiver,  i.  e.  to  the  body  of  the  faithful, 
because  it  or  its  pars  valentior  cannot  so  easily  be  seduced  by 
selfish  motives  as  can  the  Roman  bishop  or  the  College  of 
Cardinals.  Among  the  duties  of  the  to-be-reformed  pope  is 
that  of  sitting  as  judge  in  strictly  ecclesiastical  cases  with  the 
parte  valentiori  sive  majori  of  the  college  assigned  to  him  by  the 
Lawgiver.  Here  the  meaning  ''majority"  seems  perfectly 
clear.  Referring  to  the  election  of  the  emperor  MarsigUo  says 
that  its  vaUdity  depends  upon  the  valentiore  parte  of  those 
qualified  to  vote,  a  positive  allusion  to  the  principle  of  the 
majority  as  fixed  in  the  Electoral  College.  In  view  of  all  these 
illustrations  I  feel  no  hesitation  in  regarding  MarsigUo  as  a 
theoretical  advocate  of  majority  government. 

What  does  MarsigUo  mean  by  ''citizens"?     He  answers 
//this  question  with  the  Aristotelian  definition:  "I  call  a  citizen 
w  one  who  has  a  share  in  the  government  of  the  civil  community 
I  either  in  an  executive  or  a  judicial  capacity,  according  to  his 
\  degree."     This  excludes  boys,  slaves,  foreigners  and  women, 
though  in  different  ways;   for  boys  are  to  become  citizens  in 
the  near  future.     It  is  to  the  whole  body  of  citizens  thus  de- 
fined that  MarsigUo  would  commit  the  making  of  laws.     The 
objection  will  be  made  that  there  are  few  wise  and  thoughtful 
persons,  while  the  multitude  of  the  simple  (stulti)  is  infinite. 
But  the  greater  part  of  the  citizens  are  neither  wicked  nor 
lacking  in  judgment  as  regards  the  greater  part  of  the  questions 
that  concern  them  and  for  the  greater  part  of  the  time.     (One 
is  reminded  of  President  Lincoln's  inmiortal  version  of  the 
same  truth.)     For  all,  or  the  greater  part,  are  of  sound  mind 
and  reason  and  of  good  will  toward  the  state.     Even  though 
anybody  and  everybody  does  not  originate  laws,  yet  anyone 
is  capable  of  a  judgment  in  regard  to  matters  originated  by 
others  and  submitted  to  him,  as  to  whether  they  ought  to  be 
added  to  or  diminished  or  amended.     The  danger  of  legisla- 


MARSIGLIO  OF  PADUA,  DEFENSOR  PACIS  27 

tion  by  a  few  is  that  they  are  likely  to  be  moved  by  selfish 
interests  rather  than  by  the  welfare  of  the  community,  "as  has 
been  abundantly  shown  in  the  decretal  legislation  of  the  clergy." 

The  process  of  lawmaking,  therefore,  should  be  as  follows: 
Wise  men,  expert  in  the  law,  should  be  chosen  in  the  general 
assembly  of  the  citizens  and  entrusted  with  the  framing  of  bills 
(regulae).  ''When  these  bills  have  been  duly  drawn  up  and 
carefully  revised  by  these  experts,  they  are  to  be  submitted 
to  the  citizens  in  convention  for  amendment  or  rejection. 
Then,  after  everyone  has  been  heard  who  has  anything  reason- 
able to  say  about  them,  again  men  are  to  be  chosen  or  the 
former  experts  are  to  be  confirmed,  who  as  representatives  of 
the  authority  of  the  body  of  citizens  shall  approve  or  reject  the 
proposed  bills  in  whole  or  in  part ;  or  this  may  be  done,  if  they 
so  choose,  by  the  body  of  citizens  themselves  or  the  majority 
of  them.  After  this  approval,  the  so-called  bills  become 
'laws'  (leges)  and  are  to  be  so  designated,  but  not  before. 
These  alone,  after  being  duly  proclaimed,  can  bind  those  who 
violate  them  by  civil  penalties." 

The  ruler  {principans)  must  govern  according  to  the  laws, 
but  he  must  be  of  such  quality  that  he  can  supplement  them 
by  what  Marsiglio  says  he  understands  is  called  by  jurists 
"equity,"  that  is  "the  beneficent  interpretation  or  moderation 
of  the  law  in  a  specific  case  which  is  included  in  a  rigid  inter- 
pretation but  might  have  been  excepted  if  it  could  have  been 
foreseen."  To  enforce  the  law  the  ruler  should  have  a  suffi- 
cient armed  force,  but  this  should  not  be  allowed  him  until 
after  his  election.  One  feels  here  a  reference  to  the  repeated 
action  of  the  German  electors  in  choosing  a  not  too  powerful 
prince  to  be  their  principans.  The  ruler  should  have  a  large 
liberty  of  executive  action,  but  should  never  be  allowed  to 
forget  that  whatever  he  does  is  done  by  him  as  the  agent  of 
the  sovereign  people.  Marsigho  quotes  with  approval  the 
Aristotehan  maxim  that  all  parts  of  the  state  should  grow,  like 
the  parts  of  the  human  body,  in  due  proportion,  without  the 
overgrowth  of  any  one  part,  as,  for  example,  of  the  multitude 
in  a  democracy,  or,  he  adds,  "of  the  priesthood  under  the 
Christian  law." 


28  MARSIGLIO  OF  PADUA,  DEFENSOR  PACIS 

Perhaps  in  consequence  of  his  medical  training,  MarsigUo 
is  especially  fond  of  these  analogies  between  the  physical  life 
and  the  life  of  the  state.  He  never  forgets  that  the  state  is  a 
living  organism  with  its  directing  force  and  its  executive 
members.  In  the  chapter  on  the  origin  of  government  (i.  15) 
he  says: 

"Like  the  action  of  nature  in  forming  a  perfect  animal  is 
that  of  the  human  mind  in  estabUshing  a  state  and  the  parts 
thereof.  .  .  .  There  is  in  nature  a  certain  generative  principle 
by  which  the  body  of  the  animal  is  formed  and  a  certain  dis- 
tinctive quality  (virtutem)  given  to  each  of  its  parts.  The 
part  first  formed  is  the  heart  or  a  something  comparable 
(proportionalis)  to  it.  .  .  .  This  part  first  formed  is  nobler  and 
more  complete  (perfeda)  than  the  other  parts  of  the  animal. 
For  generative  nature  has  fixed  in  it  a  force  and  an  instru- 
mentality by  which  the  other  parts  are  formed  out  of  appro- 
priate material,  are  separated  and  distinguished  one  from  the 
other,  set  in  due  relations,  preserved  in  their  characteristics, 
and  protected  against  natural  injuries.  But  if,  through  sick- 
ness or  other  check  they  fall  away  from  the  normal  they  are 
restored  by  the  vigor  (virtus)  of  this  part. 

"  In  the  same  way  we  should  view  the  process  of  creating  a 
properly  constituted  state.  By  the  whole  body  of  citizens  as 
the  soul  {anima)  there  is  or  should  be  created  a  part  comparable 
to  the  heart.  In  this  is  to  be  fixed  a  certain  power  or  model 
(forma)  with  an  active  force  or  authority  for  estabhshing  the 
other  parts  of  the  state.  Now  this  part  is  the  government 
(principatus) ,  which  in  its  causal  aspect  represents  the  uni- 
versal law.  Its  active  function  is  to  administer  justice,  to 
issue  commands,  and  to  carry  out  just  and  expedient  civil 
administration. 

"  This  part  in  the  state  should  be  nobler  and  more  perfect  in 
its  qualities,  i.  e.  in  prudence  and  virtue,  than  the  other  parts. 
.  .  .  For  the  creative  principle  of  the  state,  namely  the  com- 
munity-soul, has  fixed  in  this  first  part  a  certain  universal 
causal  force,  which  is  the  law,  and  also  the  executive  power. 
Just  as  the  natural  warmth  of  the  heart  through  which  it 
performs  all  its  activities  is  directed  and  regulated  in  its  action 


MARSIGLIO  OF  PADUA,  DEFENSOR  PACIS  29 

by  the  structure  and  potency  of  the  heart  itself  and  could 
fulfil  its  purpose  in  no  other  way;  furthermore,  just  as  the 
heat  called  spiritus  is  regulated  throughout  the  body  by  that 
same  potency  ...  so  also  the  coercive  power  of  government, 
entrusted  to  any  man  as  an  instrument,  is  analogous  to  the 
heat  called  spiritus  and  should  be  regulated  by  the  law  in 
dealing  justice,  in  issuing  orders,  and  in  carrying  out  measures 
of  civic  expediency;  for  otherwise  the  ruler  could  not  fulfil  his 
purpose,  which  is  the  preservation  of  the  state." 

It  might  have  been  expected  that  Marsiglio,  with  his  doc- 
trine of  the  sovereignty  of  the  people,  would  have  been  an 
advocate  of  a  purelydemocratic  form  of  government.  Such, 
however,  is  not  thecase.  Heanalyses  the  various  kinds  of 
rule,  distinguishing  carefully  between  democracy  which  he' 
describes  as  the  corruption  of  politia,  that  is  a  republic,  in 
favor  of  the  proletariat,  the  egenorum  multitudo.  Monarchy: 
is  the  rule  of  one  person  for  the  good  of  all,  in  distinctioioTromi 
a  tyranny,  which  is  the  rule  of  one  for  his  own  advantage | 
The  monarchy  he  has  in  mind  is  ajinuted^one  {temperatus 
principatus) ,  and  rests  upon  the  consent  of  the  people,  while  a 
tyranny  is  independent  of  the  popular  will.  Marsigho  does 
not  declare  himself  abstractly  in  favor  of  any  one  type  of 
government.  He  reaUzes  that  not  all  peoples,  nor  the  same 
people  at  all  times  are  fitted  for  the  abstractly  best  of  govern- 
ments {optimmn  principatuum) ,  and  that  therefore  only  the 
practically  best  under  all  the  circumstances  is  to  be  expected; 
but  it  is  this  limited  monarchy  which  is  assumed  in  all  his 
later  treatment  of  the  subject. 

Whether  this  monarchy  should  be  an  hereditary  or  an 
elective  one  was  obviously  a  matter  of  great  importance  in 
Marsigho's  scheme,  and  he  gives  to  the  discussion  of  this  point 
a  proportionally  ample  space.  He  first  states  the  case  of  the 
opposition  to  election  in  twelve  propositions  and  then  proceeds 
to  refute  these  one  by  one.  The  whole  argument  is  summed 
up  in  the  one  principle,  that  inheritance  gives  similarity  of 
body,  but  cannot  be  depended  upon  to  give  that  continuity  of 
spirit  which  is  the  greatest  safeguard  to  the  institutions  of  the 
state.     The  elected  ruler  is  more  likely  to  correspond  to  the 


30  MARSIGLIO  OF  PADUA,  DEFENSOR  PACIS 

"conformity  of  perfection"  with  his  predecessors  and  with 
the  principle  of  perfection  in  the  whole  universe  of  things  than 
is  the  hereditary  ruler. 

This  discussion  leads  naturally  to  the  further  inquiry  whether 
there  ought  to  be  one  single  government  for  the  whole  civilized 
world  (civiliter  viventium).  It  is  almost  impossible  not  to 
connect  Marsiglio's  treatment  of  this  question  with  the  De 
Monarchia  of  Dante,  which  may  have  appeared  within  a 
dozen  years  before  the  Defensor  Pads.  Marsiglio  says  that 
the  subject  is  open  to  discussion,  but  is  not  pertinent  to  the 
present  treatise.  He  does,  however,  go  so  far  as  to  deny  that 
the  unity  of  the  world  is  the  model  for  the  constitution  of  civil 
society.  The  Empire  is  a  unit  only  in  the  sense  that  the 
several  units  of  which  it  is  composed  submit  themselves  volun- 
tarily to  its  supremacy,  whereas  the  unity  of  the  world  depends 
upon  some  essential  relation  of  each  of  its  parts  to  a  principle 
of  unity  at  the  center.  The  analogy,  therefore,  on  which 
Dante  bases  his  chief  argument  is  expressly  denied  by  Marsig- 
lio. Nature,  he  thinks,  seems  to  point  rather  toward  multi- 
plicity than  towards  unity,  and  he  sees  a  possible  purpose  in 
this  in  order  that,  through  wars  and  diseases  of  men  and  other 
animals,  the  population  may  be  kept  within  the  limits  of  suffi- 
cient support.  Here  is  a  touch  of  fourteenth  century  Malthu- 
sianism,  but  it  is  evident  that  Marsiglio  feels  himself  here  a 
little  beyond  his  depth,  and  he  turns  the  subject  back  to  his 
own  immediate  field  of  discussion.  Obviously  too  it  would 
not  do  for  him  to  go  too  far  in  diminishing  the  authority  of  the 
Empire  he  is  defending. 

The  concluding  chapter  of  the  first  book  is  a  comprehensive 
statement  of  the  purpose  of  the  work  as  a  whole.  The  object 
of  government  is  to  secure  peace.  Peace  is  the  orderly  work- 
ing of  all  parts  of  the  state  according  to  the  nature  and  purpose 
of  each.  It  consists  in  the  free  interchange  of  the  activities 
of  the  citizens,  their  mutual  aid  as  against  any  hindrance  from 
outside,  and  in  the  participation  of  all  iji  the  advantages  of 
their  common  life,  each  in  his  own  degree.  The  opposite  of 
all  this  is  discord.  Thus  much  was  known  to  Aristotle,  but 
now  comes  in  the  Church  as  the  disturbing  element  and  with 


MARSIGLIO  OF  PADUA,  DEFENSOR  PACTS  31 

this  the  necessity  of  a  new  adjustment  of  powers.  It  is  this 
cause  which,  by  hindering  the  activities  of  its  ruler,  has  de- 
prived and  still  deprives  ''the  ItaUan  kingdom"  of  peace  and 
its  blessings  and  fills  it  with  every  sort  of  misery  and  injustice. 

The  immediate  source  of  this  evil  of  clerical  supremacy 
Marsiglio  finds  in  a  change  of  theory  as  to  the  origin  and 
development  of  the  papal  power.  He  rehearses  briefly  the 
establishment  of  a  priestly  order  through  the  ordination  of 
the  Apostles,  all  of  them  equally,  as  the  successors  of  Christ 
in  the  work  of  human  redemption.  That  was  enough  down 
to  the  time  of  Constantine,  but  after  that  a  claim  ''seems  to 
have  been  derived  from  a  certain  grant  which  some  say  was 
made  by  Constantine  to  Sylvester.  But  then,  either  because 
this  grant  does  not  precisely  formulate  this  claim  or  because  it 
has  lapsed  through  the  progress  of  events,  or  was  invalid  as 
regards  the  other  principaUties  of  the  world  (or  even  as  to  the 
rule  of  the  Romans  in  some  of  the  provinces  included  in  the 
grant)  -  for  these  reasons  more  recent  bishops  of  Rome  have 
based  their  coercive  jurisdiction  over  the  whole  world  upon 
another  title,  namely,  upon  the  plenitude  of  power  (plenitudo 
potestatis)  which  they  claim  was  granted  by  Christ  to  St.  Peter 
and  his  successors  in  the  Roman  See  as  Vicars  of  Christ. 

In  other  words  the  Roman  claim  has  been  transferred  from  I 
an  historical  basis  to  a  theoretical  one.  The  course  of  history  ' 
brings  changes;  but  a  theory,  if  it  can  be  maintained  as  a 
divine  ordinance,  does  not  change.  In  this  was  the  obvious 
advantage  of  the  Roman  position  and  the  most  difficult  point 
for  its  opponents  to  overcome.  It  is  interesting  to  note  that 
Marsiglio,  more  than  a  century  before  the  complete  exposure 
of  the  fraudulent  Donation  of  Constantine  by  Lorenzo  Valla 
casts  a  certain  shade  of  doubt  upon  that  universally  accepted 
document.  "Some  say"  that  such  a  grant  was  made.  Its 
contents  are  not  specific  as  to  Roman  supremacy;  its  terms 
had  become  antiquated.  One  feels  that  if  only  the  historic 
sense  had  awakened  in  the  fourteenth  as  it  did  in  the  fifteenth 
century,  the  honor  of  that  great  exposure  would  surely  have 
fallen  to  this  fearless  investigator. 

"The  title  'Vicar  of  Christ,'  means,  therefore,  according  to 


3^  MARSIGLIO  OF  PADUA,  DEFENSOR  PACIS 

the  Roman  bishops,  that,  as  Christ  had  plenitude  of  power  and 
judgment  over  all  kings,  princes,  communities,  associations 
and  individuals,  so  those  who  call  themselves  vicars  of  Christ 
and  of  St.  Peter  have  plenitude  of  coercive  jurisdiction  not 
hmited  by  any  human  law.  .  .  .  Popes  are  oppressing  Italy  on 
account  of  her  divisions  and  her  sufferings,  but  they  overlook 
worse  things  in  princes  whom  they  fear.  They  gradually 
worm  themselves  (serpunt)  into  others'  rights,  especially  those 
of  the  Empire  during  vacancies,  until  now  they  claim  temporal 
coercive  jurisdiction  over  all  subjects  of  the  Empire  in  Germany 
as  well  as  in  Italy." 

This  is  the  cause  of  the  existing  discord  which  prevents  the 
emperor  from  exercising  his  power  to  keep  the  peace,  and 
hence,  all  wise  and  powerful  men  should  unite  to  check  these 
usurpations.  Marsiglio  himself  will  use  his  learning  to  this 
end  and  is  prepared  to  take  the  consequences. 


VI 

With  the  way  thus  prepared,  Marsiglio  enters  upon  the 
second  and  more  important  stage  of  his  exposition.  He  antici- 
pates three  kinds  of  opposition :  first  persecution  by  the  Roman 
bishops  and  their  "accomplices."  They  will  oppose  him 
because  he  is  attacking  their  ambition  for  temporal  riches  and 
power.  It  will  be  idle  to  attempt  to  curb  them  by  judicial 
argument:  "May  a  merciful  God  restrain  their  fury  and  pro- 
tect the  faithful,  princes  and  people,  whose  peace  is  menaced 
by  them."  Here  is  the  note  of  Luther's  appeal  to  the  German 
princes  as  the  only  possible  defenders  of  the  people's  cause. 
The  second  kind  of  opposition  will  come  from  the  false  teach- 
ing of  would-be  leaders,  the  confusion  of  things  temporal  and 
things  spiritual,  the  threatenings  of  eternal  punishment  to 
simple  minded  believers.  Words  simple  in  their  original 
meanings  have  been  perverted  by  gradual  usage  into  false 
implications.  So  it  will  happen  that  many  who  read  or  hear 
these  pages,  especially  those  untrained  in  philosophy  or  in  the 
Scriptures,  will  be  checked  at  the  outset.  And  then  there  will 
be  the  obstacle  of  malicious  envy.     Even  men  who  know  that 


MARSIGLIO  OF  PADUA,  DEFENSOR  PACIS  33 

what  is  here  said  is  the  truth  will  ''rend  it  with  the  tooth  of 
secret  detraction  or  attack  it  with  the  noisy  yelpings  of  pre- 
sumptuous envy,  simply  because  it  is  said  by  some  one  other 
than  themselves."  But  Marsiglio  will  not  be  turned  from  his 
purpose  by  fear  of  any  of  these  enemies. 

Here  again  he  begins  with  a  series  of  very  carefully  guarded 
definitions,  first  of  all  with  a  definition  of  the  Church.  Ac- 
cording to  Aristotle  ecclesia  signifies  the  assembly  of  all  the 
people  belonging  under  one  government.  Among  the  Latins 
the  word  means,  first  and  in  the  most  popular  sense,  a  building 
in  which  God  is  worshipped  in  common  by  the  faithful,  and 
then  the  officials,  presbyters  or  (seu)  ^  bishops,  deacons  and 
the  rest  who  serve  in  such  a  building.  In  recent  times  {apud 
modernos)  the  Church  means  chiefly  (maxime)  those  ministers, 
presbyters  or  (seu)  bishops  and  deacons,  who  serve  or  preside 
in  the  metropohtan  or  chief  of  all  churches,  a  position  gained 
rather  recently  (dudum)  by  the  church  of  the  city  of  Rome, 
whose  servants  and  presiding  officers  are  the  Roman  pope  and 
his  cardinals.  These  now  by  a  certain  usage  have  gained  the 
point,  that  they  are  called  ''the  Church,"  and  that  the  Church 
does  or  receives  whatever  they  do  or  receive  or  ordain  in  any 
way  whatsoever. 

But  in  another  sense,  and  this  the  most  true  and  most  ap- 
propriate of  all  according  to  the  earUest  usage  and  the  intention 
of  those  who  first  employed  it,  the  Church  is  the  whole  body 
of  believers  who  call  upon  the  name  of  Christ,  and  includes  all 
parts  of  this  body  in  whatever  community  they  may  be,  even 
the  community  of  the  home  {etiam  domestica).  Such  was  the 
primary  use  of  the  term  among  the  apostles  and  in  the  primi- 
tive Church,  and  therefore  all  faithful  followers  of  Christ, 
priests  or  not  priests,  are  and  of  right  ought  to  be  called  viri 
ecclesiastici  "churchmen."  To  put  it  in  other  language: 
The  Church  consists  of  all  those  who  belong  to  it,  and  here 
one  sees  the  working  in  Marsiglio's  mind  of  that  philosophical 

'  Almost  invariably  when  Marsiglio  speaks  of  bishops  and  presbyters  together 
he  connects  them  by  the  word  seu,  hardly  ever  by  et  or  atque.  This  seems  to 
be  one  way  of  expressing  his  opinion  on  the  essential  equality  of  all  ordained 
clergymen. 


34  MARSIGLIO  OF  PADUA,  DEFENSOR  PACIS 

process  of  which  his  co-worker  WiUiam  Ockham  was  the  most 
eminent  spokesman.  The  unit  of  Christian  fellowship  was 
the  individual  Christian.  It  was  not  the  order,  the  class,  the 
official  college,  which  determined  the  status  of  the  individual; 
it  was  the  body  of  individuals  that  gave  sanction  to  every  one 
of  its  organs.  As  the  philosopher  would  have  said :  The  thing 
was  the  reaUty,  and  the  general  concept  was  only  a  convenient 
name  by  which  to  express  the  complex  of  things  —  "universalia 
post  rem,''  in  distinction  from  the  formula  which  had  dominated 
the  thought  of  the  Middle  Ages,  "universalia  ante  rem."  It 
is  this  emphasis  upon  the  right  of  the  individual  Christian 
man  that  runs  like  a  scarlet  thread  throughout  every  stage  of 
Marsiglio's  further  demonstration. 

He  goes  on  to  distinguish  between  the  words  "temporal" 
and  ''spiritual."  Temporal  is  readily  defined  as  whatever 
pertains  to  the  use  and  advantage  of  man  in  this  world.  The 
difficulty  is  in  fixing  the  limits  of  the  spiritual.  MarsigUo 
enumerates  no  less  than  seven  different  senses  in  which  the 
word  is  frequently  employed.  In  general  it  may  be  used  of  all 
incorporeal  things  and  their  activities.  More  specifically  it 
applies  to  the  divine  law,  its  teachings  and  its  disciphne,  and 
so  to  the  sacraments  of  the  Church  and  their  effects,  the  divine 
grace,  all  theological  virtues  and  gifts  of  the  Holy  Spirit  pre- 
paring us  for  the  eternal  life.  Further,  it  may  include  all  those 
voluntary  human  actions  or  experiences  (passio7ies)  which 
tend  toward  merit  in  the  life  to  come,  as,  for  example,  divine 
contemplation,  affection  toward  God  and  our  neighbor,  chari- 
ties, fastings,  prayers,  pilgrimages,  contempt  of  the  world  and 
escape  from  it.  Less  important  is  its  application  to  the  church 
building  and  all  the  apparatus  connected  with  divine  service. 

But  now,  in  the  most  recent  times,  certain  persons  extend 
this  word  "spiritual"  most  unsuitably  and  inappropriately  to 
those  actions  of  the  clergy  which  are  to  the  advantage  or  dis- 
advantage of  another  person  with  reference  to  the  present  life. 
Still  more  improperly  they  include  under  "spiritual"  the 
temporal  possessions  of  the  clergy,  both  real  and  personal,  and 
also  certain  incomes  from  them  which  they  call  "tithes,"  so 
that  under  cover  of  this  usage  they  may  be  exempted  from  the 


MARSIGLIO  OF  PADUA,  DEFENSOR  PACIS  35 

ordinary  rules  of  the  civil  law.  Surely  this  is  an  open  abuse, 
and  is  contrary  to  the  intention  and  practice  of  the  apostles 
and  saints,  who  called  such  things  not  "  spiritualia,"  but 
"carnalia  seu  temporalia."  ''For  not  all  their  acts  are  spiritual 
or  ought  to  be  so  called.  Many  of  them  are  civil  acts  subject 
to  contention,  carnal,  and  temporal.  For  priests  can  borrow, 
make  trusts,  buy,  sell,  strike,  kill,  rob,  fornicate,  rape,  betray, 
bear  false  witness,  slander,  fall  into  heresy,  or  commit  other 
crimes,  just  as  they  are  committed  by  laymen.  Wherefore 
we  may  properly  ask  them  whether  any  one  of  sound  mind  can 
call  such  actions  when  committed  by  them  spiritualia." 

The  words  judex  and  judicium  offer  another  fine  distinction. 
We  use  the  word  "judge"  of  an  expert  in  some  technical  art, 
as,  for  example,  of  a  physician,  a  geometer,  or  a  carpenter,  and 
his  opinion  within  his  field  is  a  "judgment."  Specifically,  a 
judge  is  one  having  special  knowledge  of  pubUc  or  private  law, 
commonly  called  an  advocate,  though  in  many  regions,  espe- 
cially in  Italy,  he  is  called  judex.  Again,  this  word  is  used 
of  the  ruler,  and  his  opinions  are  called  judicia  and  have  coer- 
cive power.  Again  and  again  in  later  chapters  Marsiglio  refers 
back  to  these  fundamental  distinctions  in  the  use  of  terms  in 
order  to  make  perfectly  clear  in  what  sense  he  is  using  them  at 
the  moment  and  to  guard  himself  against  objections  arising 
from  their  corruption  or  perversion.  Especially  in  defining 
the  powers  of  the  priesthood  he  will  insist  upon  the  sharpest 
distinction  between  their  character  as  experts  and  their  claim 
to  coercive  jurisdiction. 

The  arguments  for  the  coercive  powers  of  the  Papacy  are 
summed  up  under  the  one  principle  that,  as  the  spiritual  is 
higher  than  the  temporal,  so  that  power  which  is  primarily 
concerned  with  spiritual  things  has  rights  of  control  over  all 
powers  which  have  to  do  only  with  temporal  things.  Espe- 
cially is  this  claim  advanced  as  against  the  Empire,  because 
the  Papacy  pretends  to  the  right  to  confer  the  imperial  power 
and  to  transfer  it  from  one  prince  to  another,  as  in  the  case  of 
the  famous  transfer  from  the  ruler  of  the  east  to  the  king  of 
the  Franks.  This  pretension  has  recently  been  renewed  in  the 
strongest  terms  in  the  conflict  between  Ludwig  the  Bavarian 


36  MARSIGLIO  OF  PADUA,  DEFENSOR  PACIS 

and  his  rival  Frederic  of  Austria.  Marsiglio  proposes  to  show 
"by  the  witness  of  Scripture  in  both  its  hteral  and  its  mystical 
sense,  according  to  the  interpretation  of  holy  men  and  other 
approved  doctors,  that  neither  the  Roman  bishop  called  '  pope ' 
nor  any  other  bishop,  presbyter,  or  deacon  has  a  right  to  any 
sovereignty  (principatum)  or  judicial  authority  {judicium)  or 
coercive  jurisdiction  over  any  priest,  ruler,  community,  asso- 
ciation, or  individual  of  whatsoever  condition  (understanding 
by  'coercive  judgment'  what  we  have  already  described  as 
contained  in  the  third  meaning  oi  judex  and  judicium)." 

This  sentence  may  be  said  to  contain  the  thesis  of  the  whole 
work.  It  is  a  sweeping  proposition,  and  Marsiglio  seems  to 
feel  the  necessity  of  safeguarding  himself  by  a  disclaimer. 
Here,  he  says,  is  no  question  as  to  what  power  or  authority 
Christ,  true  God  and  true  man,  had  and  still  has  in  this  world, 
nor  how  much  of  such  authority  he  had  power  to  confer  upon 
St.  Peter,  or  upon  the  other  apostles  and  their  successors  the 
bishops  or  presbyters;  for  on  this  point  no  true  believer  has 
any  doubts.  What  he  wishes  to  investigate  is  the  "question. 
What  executive  power  and  authority  in  this  world  Christ 
willed  to  confer  upon  them  and  de  facto  did  confer  upon  them, 
and  from  what  he  excluded  and  prohibited  them  both  by  his 
advice  and  his  commands.  Christ  came  into  the  world,  not  to 
rule  over  men,  not  to  judge  them  with  judgments  (according 
to  the  third  meaning),  not  to  be  a  temporal  sovereign,  but 
rather  to  subject  himself  to  the  conditions  of  the  world  as  it 
was;  nay,  he  purposely  willed  to  exclude  and  did  exclude 
himself  and  the  apostles  and  disciples  and  consequently  their 
successors,  bishops  or  presbyters,  from  all  temporal  rule  or 
sovereignty  (that  is,  of  a  coercive  character),  and  he  did  this 
by  his  example,  his  teaching,  his  counsel  and  his  commands. 

We  are  not  greatly  concerned  with  the  long  array  of  texts  of 
Scripture  and  quotations  from  the  Fathers  from  Augustine  to 
Bernhard  of  Clairvaux.  This  is  notoriously  a  kind  of  argu- 
ment that  can  be  used  with  equal  success  on  either  side  of  any 
question.  The  fact  was,  that  the  Church,  in  the  narrower 
sense,  had  fortified  itself  with  a  tremendous  structure  of  legal 
precedent  and  defiant  assumption  against  which  nothing  short 


MARSIGLIO  OF  PADUA,  DEFENSOR  PACIS  37 

of  determined  revolt  could  accomplish  any  permanent  result. 
The  conclusion  is  the  inevitable  one,  that  since  no  clerical 
person  has  the  right  to  coercive  rule,  all  clergymen  must  be 
subject  to  the  civil  lawgiver,  and  may  exercise  jurisdiction 
over  laymen  or  other  clergymen  only  in  so  far  as  this  is  per- 
mitted to  them  by  that  lawgiver,  in  whose  power,  moreover, 
it  lies  to  deprive  them  of  it  for  reasonable  cause.  And  it  must 
not  be  forgotten  that  this  "lawgiver"  is,  according  to  the 
definition,  the  People,  acting  either  directly  in  assembly  or 
through  a  ruler  chosen  by  their  own  free  action. 

This  leads  naturally  to  an  examination  of  the  famous  "power 
of  the  keys."  Christ  said  to  Peter  (Matt,  xvi,  19),  "I  will  give 
unto  thee  the  keys  of  the  kingdom  of  heaven :  and  whatsoever 
thou  shalt  bind  on  earth  shall  be  bound  in  heaven :  and  what- 
soever thou  shalt  loose  on  earth  shall  be  loosed  in  heaven." 
Similar  sayings  were  addressed  also  to  the  whole  body  of  the 
apostles  (Matt,  xviii,  18  and  John  xx,  23) .  What  do  they  mean? 
Marsiglio  answers  in  such  a  way  as  to  show  that  he  accepts  \\ 
the  practice  of  the  Church  in  committing  to  the  priesthood  the 
function  of  performing  the  sacraments  and  pronouncing  the 
remission  of  sins  upon  due  confession  and  repentance;  but 
he  shows  also  that  the  real  process  of  absolution  depends,  not 
upon  any  action  of  the  priest,  but  upon  the  grace  of  God  freely 
given  to  the  individual  repentant  soul.  Confession  is  properly 
required,  but  if  it  is  not  practicable,  then  absolution  takes 
place  without  it,  provided,  however,  that  the  penitent  have  the 
honest  intention  of  confessing  at  the  first  practicable  oppor- 
tunity. It  is  a  modified  protest,  but  the  spirit  of  it  is  evident. 
The  real  thing  is  the  individual  will;  the  ceremony  is  accessory. 

Marsiglio's  authorities  here  are  Peter  Lombard  and  Richard 
of  St.  Victor,  and  he  sums  up  his  conclusion  from  their  opinions : 
"From  which  it  is  evident  that  as  regards  the  merit  of  the 
penitent,  the  Roman  bishop  has  no  more  power  than  any  other 
priest  to  absolve  from  guilt  or  from  penalty.  God  alone  ab- 
solves the  truly  penitent  sinner  without  any  action  of  the 
priest  either  preceding  or  accompanying."  As  to  excom- 
munication, although  there  is  need  of  a  priest  to  declare  the 
decision,  still  the  coercive  function  does  not  belong  to  any 


38  MARSIGLIO  OF  PADUA,  DEFENSOR  PACIS 

single  priest  or  to  any  collegium  of  them.  It  is  the  right  of  the 
whole  body  of  the  faithful  in  the  community  where  the  ac- 
cused person  belongs,  or  of  his  ruler  {superior)  or  of  a  General 
Council  to  appoint  a  judge,  whose  duty  it  shall  be  to  summon 
the  accused,  to  examine  him,  to  pass  judgment,  and  to  acquit 
him  or  condemn  him  to  public  disgrace  and  separation  from 
the  society  of  believers.  Nevertheless  in  the  inquiry  as  to 
whether  a  person  ought  to  be  excommunicated  or  not,  a  judge 
of  this  sort  should  associate  with  himself  a  body  of  clergymen 
as  experts  in  the  law  and  the  customary  practice.  "If  it  were 
lawful  for  any  one  priest,  either  alone  or  with  his  collegium  of 
clergymen,  to  excommunicate  anyone  he  please  without  the 
consent  of  the  whole  body  of  the  faithful,  it  follows  that  a 
priest  or  a  collegium  of  them  might  take  away  all  kingdoms 
and  principalities  from  the  kings  or  princes  who  hold  them. 
For  if  any  prince  be  excommunicated,  all  his  subjects  will  be 
excommunicated  also  if  they  continue  to  obey  him,  so  that  the 
power  of  every  prince  will  be  destroyed," 

By  numerous  analogies  Marsiglio  tries  to  make  still  clearer 
the  distinction  between  the  professional  and  the  extra-pro- 
fessional action  of  the  priesthood.  It  is  the  function  of  the 
priest  to  examine  the  accused  as  to  whether  according  to 
the  Gospel  law  he  ought  to  be  cut  off  from  the  communion  of 
the  faithful  lest  he  infect  others;  just  as  a  physician  or  a  council 
of  them  has  to  decide  about  a  physical  disease,  e,  g,  whether  a 
leper  ought  to  be  separated  from  human  society.  But,  as  the 
physician  has  no  coercive  jurisdiction  which  would  enable  him 
to  enforce  such  a  decision,  so  the  priest  has  no  power  to  enforce 
his  expert  judgment.  In  the  same  way,  the  turnkey  (claviger) 
of  a  prison  has  the  duty  of  opening  and  closing  the  doors,  but 
has  no  power  to  say  whether  the  door  shall  or  shall  not  be 
opened  to  a  given  prisoner  at  a  given  time.  He  has  to  proclaim 
that  the  prisoner  is  freed  or  not  freed,  but  it  is  not  his  procla- 
mation but  the  decree  of  the  judge  which  really  releases  him. 
If  he  proclaim  a  man  to  be  free  or  bound,  contrary  to  the 
decree  of  the  judge,  the  man  is  not  therefore  free  or  bound.  So 
the  priest  has  the  function  of  declaring  the  sinner  absolved  or 
condemned,  but  has  no  coercive  right  in  the  matter. 


MARSIGLIO  OF  PADUA,  DEFENSOR  PACIS  39 

We  now  begin  to  see  the  practical  applications  of  the  dis- 
tinctions thus  carefully  worked  out.  The  first  of  these  is  the 
right  of  civil  jurisdiction  over  the  civil  or  temporal  offences  of 
clergymen.  The  fact  already  set  forth  that  clergymen  can 
and  do  commit  crimes  brings  them  of  itself  within  the  scope  of 
the  civil  law;  but  Marsigho  goes  a  step  further.  The  clergy- 
man, as  an  expert  in  morals,  sins  more  gravely  and  less  excus- 
ably than  the  layman,  and  ought  therefore  to  be  the  more 
severely  punished.  ''Let  no  one  object,  that  injuries  by  word 
of  mouth  or  to  property  or  to  the  person  or  of  any  other  kind 
forbidden  by  secular  law  become  ''spiritual  acts"  when  com- 
mitted by  a  priest  and  that  therefore  their  punishment  does 
not  belong  to  the  secular  ruler  ...  for  these  are,  as  already 
shown,  carnalia  and  temporalia.  If  the  Roman  bishop  or  any 
other  priest  were  to  be  thus  exempted  from  the  coercive  juris- 
diction of  rulers,  and  were  himself  to  be  a  judge  of  this  sort, 
freed  from  the  authority  of  the  human  Lawgiver,  and  might 
separate  all  spiritual  servants  (commonly  called  "clergy") 
from  the  jurisdiction  of  rulers  and  subject  them  to  himself 
(as  the  Roman  pontiffs  are  doing  in  these  days),  it  follows  of 
necessity  that  the  secular  jurisdiction  of  rulers  would  be  almost 
totally  destroyed.  That,  I  think,  would  be  a  serious  evil  and 
of  great  moment  to  all  rulers  and  all  communities." 

In  pursuance  of  their  doctrine  of  clerical  exemption,  Roman 
bishops  have  recently  been  trying  to  include  as  many  kinds  of 
persons  as  possible  under  the  term  "clergy."  For  example,  all 
such  orders  as  Templars,  Hospitallers,  lay  brethren  known  as 
Beghini  or  Fratres  Gaudentes  or  the  Order  of  Altopascio  ^  and 

1  et  eos  qui  de  alto  passu.  This  puzzling  description  doubtless  refers  to  the 
lay  mendicant  Order  of  Altopascio,  the  seat  of  which  was  in  Tuscany  on  the  border 
between  Florence  and  Lucca.  The  Rule  of  this  Order  is  printed  in  the  collection 
called  Curiositd  Letterarie,  vol.  liv,  Bologna,  1864.  The  Italian  manuscript, 
supposed  by  the  editor  to  be  a  translation  from  a  Latin  original  made  about 
1300,  gives  the  name  as  Altopasso.  This  plainly  suggests  the  derivation,  alius 
passus.  It  is,  therefore,  quite  intelligible  that  a  branch  of  the  Order  established 
in  Paris  by  King  Philip  IV  (1285-1314)  should  have  been  called  du  Haul  Pas. 
The  use  of  this  name  seems  to  have  caused  the  original  Altopascio  entirely  to 
disappear.  It  does  not  occur  in  the  description  of  the  Hospital  of  the  Order  in 
Paris  given  in  Du  Breul,  TMdtre  des  Antiquitez  de  Paris,  1612,  nor  in  Helyot, 
Histoire  des  Ordres  Religieux  et  Militaires,  ii,  282,  2d  ed.  1792.     In  both  cases  the 


40  MARSIGLIO  OF  PADUA,  DEFENSOR  PACIS 

so  on  pro  libito.  If  all  persons  of  this  sort  are  to  be  exempted 
from  the  jurisdiction  of  civil  rulers,  with  immunity  also  from 
public  burdens,  it  seems  a  very  obvious  danger  that  the  greater 
part  of  mankind  may  slip  into  these  orders.  If  this  should 
happen  the  coercive  jurisdiction  of  rulers  would  be  left  without 
effect,  a  grave  evil  and  corruption  of  the  republic.  "For  who- 
ever enjoys  the  honors  and  advantages  of  a  civil  community, 
as,  for  example,  the  peace  and  protection  of  the  human  Law- 
giver, should  not  be  exempted  from  its  burdens  and  its  juris- 
diction without  the  action  of  the  Lawgiver  itself.  "To  avoid 
this  we  must  admit,  in  accordance  with  the  Truth,  that  the 
ruler  has  jurisdiction  over  all  bishops  or  presbyters  and  clergy- 
men by  authority  of  the  Lawgiver,  in  order  that  the  republic 
may  not  go  to  pieces  through  undue  multiplicity  of  powers. 
The  ruler  ought  further  to  assign  a  certain  number  of  clergymen 
to  each  district  subject  to  him,  as  also  of  every  other  class  of 
citizens,  lest  through  their  undue  increase  they  come  to  resist 
the  coercive  power  of  the  ruler  or  otherwise  to  disturb  the 
peace  of  the  realm  and  impede  the  community  or  the  kingdom 
in  carrying  out  its  necessary  activities." 

In  the  effective  sense  of  the  word  "judge,"  there  is  but  one 
who  can  give  final  judgment  as  to  transgressions  of  the  divine 
law,  that  is  Christ  and  no  other.  In  this  world  there  is  no 
judge  who  can  exercise  coercive  jurisdiction  for  such  offences. 
The  priest  is,  so  far  as  this  world  is  concerned,  only  a  "doctor," 
or  expert.  His  business  is  to  teach,  to  exhort,  to  convince  by 
argument,  to  terrify  transgressors  by  fear  of  future  condemna- 
tion at  the  judgment  seat  of  Christ,  but  not  to  compel  by  force. 
Such  enforced  conformity  is  of  no  use  whatever,  since  it  profits 
nothing  to  the  man  so  far  as  his  eternal  salvation  is  concerned. 
So  that,  "in  accordance  with  the  Truth  and  the  obvious  inten- 

origin  of  the  Order  is  said  to  have  been  at  Lucca.  It  was  only  the  unfailing 
linguistic  instinct  of  my  colleague,  Professor  George  Foot  Moore,  working  down- 
ward from  Marsiglio's  qui  de  alio  passu  to  the  French  Havi  Pas,  that  enabled 
me  to  work  upward  again  from  this  to  Altopascio  and  to  discover  the  missing 
link  in  Altopasso.  A  considerable  account  of  the  Order  with  many  documentary 
proofs  is  given  in  Giovanni  Lami,  Deliciae  Eruditorum,  Florence,  1769,  vol. 
xviii,  pp.  50-184.  All  three  of  these  rare  books  are  in  the  library  of  Harvard 
College. 


MARSIGLIO  OF  PADUA,  DEFENSOR  PACIS  41 

tion  of  the  Apostle  and  of  those  holy  men  who  were  the  most 
famous  doctors  of  the  Church,  no  one  is  to  be  compelled  in  this 
world  to  obey  the  Gospel  law  by  any  form  of  punishment  or 
penalty,  whether  he  be  a  believer  or  an  unbeliever.  Conse- 
quently, no  minister  of  this  law,  bishop  or  presbyter,  can  judge 
any  one  in  this  world  (in  the  third  sense  of  the  word  '  judg- 
ment 0,  nor  compel  any  one  to  observe  the  divine  law,  especi- 
ally without  the  authority  of  the  human  Lawgiver." 

We  are  thus  led  naturally  to  Marsiglio's  views  as  to  the 
punishment  of  heretics.  He  does  not  question  that  the  heretic 
deserves  some  kind  of  correction,  and  admits  that  at  first 
thought  such  correction  seems  to  be  the  function  of  the  priest 
as  the  expert  in  the  divine  law.  But  here  comes  in  his  funda- 
mental distinction  again.  It  is  Christ  alone  who  can  judge  the 
heretic  for  his  offence  against  the  divine  law,  and  this  judgmsnt 
is  reserved  for  the  world  to  come.  If,  however,  he  be  forbidden 
to  remain  in  the  region  where  his  heresy  was  proven,  then,  as  a 
transgressor  of  human  law  he  may  be  coerced  by  the  custodian 
of  that  law,  as  authorized  by  the  human  Lawgiver.  But  if  the 
human  law  allows  him  to  stay  in  the  community  of  the  faith- 
ful, then  ''I  say  that  no  one  has  the  right  to  coerce  the  heretic 
or  other  infidel  by  any  penalty  or  punishment,  real  or  personal, 
so  far  as  his  status  in  this  Hfe  is  concerned.  The  reason  for  this 
is  a  general  one :  that  no  one,  however  he  may  sin  in  matters  of 
opinion,  is  to  be  punished  or  coerced  in  this  world  for  the 
opinion  itself,  but  only  in  so  far  as  he  offends  against  a  com- 
mand of  the  human  law." 

MarsigUo  next  devotes  several  chapters  to  the  critical  ques- 
tion of  apostohc  poverty  and  its  modern  apphcation  in  the  form 
of  sacerdotal  poverty.  Nowhere  else  does  he  let  himself  go  in 
bitter  accusation  of  the  folly  and  wickedness  of  the  clergy  as 
he  does  here.  As  usual  he  begins  with  definitions,  analysing 
with  the  utmost  care  the  various  forms  and  degrees  of  property 
rights  in  a  civil  society.  Especially  interesting  in  view  of  the 
later  exposition  by  Wycliffe  and  his  followers  is  Marsigho's 
definition  of  dominium  or  lordship.  ''Strictly,  dominium 
means  supreme  control  over  a  thing  justly  acquired  and  so  held 
that  no  one  else  has  a  right  to  this  thing  without  the  express 


42  MARSIGLIO  OF  PADUA,  DEFENSOR  PACIS 

consent  of  the  person  in  control."  In  common  usage  this 
definition  appUes,  not  only  to  a  thing  itself,  but  to  the  use  or 
usufruct  of  the  thing,  a  distinction  which  underlies  the  most 
important  of  Wychffe's  contentions  on  this  subject.  Marsiglio, 
however,  does  not  here  enlarge  upon  this  point,  but  includes 
both  kinds  of  dominium  in  his  later  applications.  The  term 
applies  to  ownership  by  corporations  as  well  as  individuals, 
and  this  gives  the  opportunitj'^  for  references  to  the  property  of 
reUgious  orders.  "We  must  not  forget"  says  our  author, 
"that  there  are  some  of  the  voluntary  poor  who  have  aban- 
doned earthly  things  from  honorable  motives  and  in  suitable 
ways.  But  there  are  others  who  seem  to  have  given  up  these 
things  not  with  any  such  purpose  but  for  vain  glory  or  some 
other  wordly  deceit  (fallaciam).  We  must  bear  in  mind  also 
that  of  earthly  goods  (which  they  call  riches)  there  are  some 
which  according  to  ordinary  human  needs  are  to  be  consumed 
at  once,  as  food,  drink,  medicine  and  the  like;  others  of  a 
permanent  kind  which  by  their  very  nature  serve  many  uses, 
as  land,  houses,  tools,  clothing,  horses  and  slaves." 

As  a  conclusion  from  this  distinction  Marsiglio  lays  down 
what  seem  to  him  sound  principles  of  sacerdotal  economy. 
Clergymen  should  be  content  with  their  daily  bread  and  the 
necessary  clothing  if  they  desire  to  attain  a  condition  of  perfec- 
tion or  poverty  in  the  highest  sense  {summam  paupertatem) . 
But  on  the  other  hand  it  is  the  bounden  duty  of  those  to  whom 
they  minister  to  supply  these  necessities  if  they  are  able  to  do 
so,  and  the  clergyman  has  the  right  to  demand  such  support, 
though  not  by  coercive  process  in  this  present  Ufe.  He  can 
have  recourse  only  to  the  "divine  law."  There  is  no  warrant 
in  Scripture  for  requiring  tithes  or  any  other  part  of  the 
property  of  the  faithful.  If  the  community  is  so  poor  that  it 
cannot  support  the  clergy,  then  they  must  seek  some  other 
honorable  and  suitable  way  of  increasing  their  income. 

"Now  someone  will  ask,  to  whom  belongs  the  dominium  or 
right  of  suit  before  a  civil  court  over  such  temporaUties  and 
especially  over  real  property,  since,  as  we  have  shown,  such 
dominium  does  not  belong  to  gospel  ministers  in  their  state  of 
perfection.     I  say,  that  the  ownership  of  property  set  apart 


MARSIGLIO  OF  PADUA,  DEFENSOR  PACIS  43 

for  the  maintenance  of  ministers  of  the  Gospel  belongs  to  the 
Lawgiver  or  to  its  deputies  for  this  special  purpose  appointed 
either  by  the  Lawgiver  or  by  the  donors  of  such  property. 
Persons  thus  appointed  for  the  defense  and  recovery  of  ecclesi- 
astical property  are  usually  called  ''patrons"  of  churches.  .  .  . 
It  is  not  fitting,  therefore,  that  Christ's  perfect  ones,  the 
successors  of  the  apostles,  should  reserve  to  themselves  fields, 
towns,  or  fortresses.  Never  was  there  given  in  the  acts  or  the 
example  of  Christ  a  formula  to  the  Church  for  holding  lordship 
over  real  property  or  of  reserving  it  to  themselves  for  the  future, 
but  examples  of  the  opposite  we  do  indeed  find  in  Scripture. 
A  formula  for  holding  personal  property  for  the  purpose  above 
specified  we  do  find,  but  nowhere  for  holding  real  property." 
It  is  at  this  point  that  Marsiglio  strikes  hands  with  the 
Spiritual  Franciscans  in  their  crusade  for  the  evangelical 
poverty  of  the  clergy  and  especially  in  their  fight  against  Pope 
John  XXII.  In  thus  making  common  cause  with  a  class  of 
persons  as  little  Ukely  as  any  to  be  accused  of  unorthodoxy  his 
case  was  greatly  strengthened. 

VII 

Marsiglio  is  now  prepared  to  move  on  to  the  most  telling 
argument  in  his  whole  attack,  and  to  grapple  with  the  vital 
question  of  papal  supremacy.  By  way  of  introduction  he 
summarizes  once  more  what  he  has  already  laid  down  as  to  the 
nature  of  the  sacerdotal  office.  His  main  distinction  here  is 
between  the  essential  quality  or  "character"  of  the  priest  and 
his  other  more  distinctly  functional  quality.  The  former  in- 
cludes the  power  to  celebrate  the  sacrament  of  the  Eucharist 
and  to  absolve  the  faithful  from  their  sins.  This  power  is 
granted  by  God  through  Christ  immediately,  though  with  a 
certain  preparatory  human  ceremony,  as  the  laying  on  of 
hands  and  the  utterance  of  certain  words.  These  human  acts, 
however,  have  no  efTect  in  so  far  as  the  conferring  of  the  essen- 
tial sacerdotal  character  is  concerned,  although  "they  precede 
in  pursuance  of  a  certain  divine  covenant  or  ordinance." 
"  Quite  another  thing  is  that  human  institution  by  which  one 


44  MARSIGLIO  OF  PADUA,  DEFENSOR  PACIS 

priest  is  set  above  others,  or  by  which  priests  are  assigned  to 
certain  territories  for  the  instruction  of  the  peoples  in  the 
divine  law,  for  administering  sacraments  and  dispensing  those 
temporal  rights  which  we  call  "church  benefices."  As  regards 
the  former,  the  essential  priestly  character,  all  priests  are  equal 
as  all  the  Apostles  were  equal.  No  one  of  the  Apostles  had 
authority  over  any  other  or  over  the  whole  body  of  them,  either 
as  to  their  essential  and  primary  character  or  as  to  any  second- 
ary institutions. 

In  this  way  Marsiglio  leads  up  to  the  vital  question  of  the 
Petrine  supremacy.  We  recall  that  he  said  rather  early  that 
the  claim  of  the  Roman  bishop  to  supremacy  over  other  ele- 
ments of  the  Church  had  in  recent  times  been  shifted  from  the 
historical  basis  of  the  Constantinian  Donation  to  the  dogmatic 
or  speculative  basis  of  the  Petrine  succession.  This  has, 
therefore,  become  the  very  crux  of  the  whole  papal  position 
and  is  in  consequence  selected  by  MarsigUo  as  the  most  critical 
point  in  his  attack.  Taking  up  the  argument  as  to  the  equality 
of  the  priestly  character  he  applies  it  at  once  directly  to  Peter. 

"Peter  had,  therefore,  no  power  and  still  less  any  coercive 
jurisdiction  directly  from  God  over  the  other  apostles,  neither 
the  power  of  inducting  them  into  the  sacerdotal  office,  nor  of 
setting  them  apart,  nor  of  sending  them  out  on  their  work  of 
preaching,  excepting  that  we  may  fairly  admit  a  certain  pre- 
cedence over  the  others  on  account  of  age  or  service  {officio)  or 
perhaps  from  circumstances  {secundum  tempus)  or  the  choice 
of  the  apostles,  who  properly  revered  him  —  although  no  one 
can  prove  such  a  choice  from  Scripture.  The  proof  that  what 
we  are  saying  is  true  is,  that  we  find  in  Scripture  that  St.  Peter 
assumed  no  peculiar  authority  for  himself  over  the  other 
apostles,  but,  on  the  contrary  maintained  an  equality  with 
them.  For  the  whole  body  {congregatio)  of  the  Apostles  was 
of  higher  authority  than  that  of  Peter  alone  or  of  any  other 
Apostle.  Why,  then,  do  certain  sacrilegious  flatterers  take 
upon  themselves  to  say  that  any  one  bishop  has  from  Christ 
plenitude  of  power  over  clergymen,  not  to  say  over  laymen, 
when  neither  Peter  nor  any  other  Apostle  ever  presumed  to 
ascribe  such  power  to  himself  either  by  word  or  deed?". . . . 


MARSIGLIO  OF  PADUA,  DEFENSOR  PACTS  45 

"Furthermore,  since  it  is  written  that  Peter  was  elected  bishop 
at  Antioch  by  the  multitude  of  the  faithful,  not  needing  the 
confirmation  of  the  other  Apostles,  and  that  the  rest  of  the 
Apostles  presided  over  other  regions  without  the  knowledge  of 
Peter  or  any  institution  or  confirmation  by  him  (since  they  were 
sufficiently  consecrated  by  Christ),  we  ought  in  the  same  way 
to  hold  that  the  successors  of  these  Apostles  needed  no  con- 
firmation from  the  successors  of  Peter.     Nay,  more,  that  many 
successors  of  other  Apostles  were  dul}''  elected  and  installed  as 
bishops  and  governed  their  provinces  as  holy  men  without  any 
further  institution  or  confirmation  by  the  successors  of  Peter." 
As  to  the  supremacy  of  the  bishop  of  Rome  as  the  successor 
of  Peter,  it  is  marvellous,  says  Marsigho,  that  people  will  over- 
look the  fact  that  the  Roman  bishops  are  the  successors  rather 
of  Paul  than  of  Peter,  and  it  is  "  supermarvellous "  when  wel 
consider  that  it  is  not  the  See  of  Rome  but  the  See  of  Antioch  l  ^ 
which  ought  justly  to  claim  this  succession.     It  was  Paul  who 
was  sent  out  to  preach  the  Gospel  to  the  Gentiles,  as  Peter 
was  sent  to  the  Jews.     ''It  can  be  proved  by  Scripture  that 
Paul  was  two  years  at  Rome,  preached  there  and  converted  all 
Gentiles  who  were  wilUng  to  be  converted,  and  therefore  it  is 
evident  that  he  was  in  a  special  sense  bishop  of  Rome  and 
exercised  there  the  pastoral  office,  having  his  authority  from 
Christ,  commanded  thereto  by  revelation  and  elected  by  the 
consent  of  the  other  Apostles."     "But,  as  to  Peter,  I  say  that 
it  cannot  be  proved  by  Scripture  that  he  was  bishop  of  Rome 
or,  what  is  more,  that  he  was  ever  at  Rome.     For  it  seems  most 
amazing  if,  according  to  some  popular  saint's  legend,  St.  Peter 
came  to  Rome  before  St.  Paul,  preached  there  the  word  of  God 
and  was  then  taken  prisoner,  if  then  St.  Paul  after  his  arrival 
in  Rome  acting  together  with  St.  Peter  had  so  many  conflicts 
with  Simon  Magus  and  in  defence  of  the  faith  fought  against 
emperors  and  their  agents,  and  if  finally,  according  to  the  same 
story,  both  were  beheaded  at  the  same  time  for  their  confession 
of  Christ,  there  fell  asleep  in  the  Lord,  and  thus  consecrated 
the  Roman  Church  of  Christ  —  most  amazing,  I  say,  that  St. 
Luke,  who  wrote  the  Acts  of  the  Apostles  and  Paul  himself 
make  not  the  shghtest  mention  of  St.  Peter." 


46  MARSIGLIO  OF  PADUA,  DEFENSOR  PACTS 

When  Paul  came  to  Rome  the  Jews  there  declared  that  they 
knew  nothing  about  this  ''new  sect"  except  that  it  was  every- 
where badly  spoken  of  (Acts  xxviii,  22).  Now,  asks  Marsiglio, 
can  any  one  who  is  seeking  the  truth  and  not  merely  looking 
for  an  argument  believe  that  Peter  had  come  to  Rome  in  ad- 
vance of  Paul  and  had  not  said  a  word  about  Christ?  Or  that 
Paul,  if  he  had  known  that  Peter  had  been  preaching  there 
would  not  have  referred  to  him  as  a  witness?  "  Can  any  one 
think  that  Paul  was  for  two  years  with  Peter  at  Rome  and  had 
no  intimate  relations  with  him,  for,  if  he  had,  that  the  author 
of  the  Acts  would  not  have  mentioned  it?  For  in  other  and 
less  important  places  where  Paul  met  Peter  he  mentions  him, 
as  at  Corinth  and  at  Antioch  and  many  other  places,  and  if  he 
had  met  him  at  Rome,  the  most  important  city  in  the  world, 
where,  according  to  the  above  story  St.  Peter  was  in  charge 
as  bishop,  how  could  he  have  failed  to  mention  him?  So  that 
these  things  are  practically  (quasi)  incredible,  and  that  story 
or  legend  cannot  with  any  probability  be  accepted  as  to  this 
part  of  it,  but  must  be  reckoned  among  the  apocryphal  writ- 
ings. But  according  to  Scripture  it  ought  to  be  held  without 
a  doubt  that  Paul  was  bishop  of  Rome,  and  if  some  one  else 
was  with  him  at  Rome,  nevertheless  Paul  should  for  the  above 
reasons  be  regarded  as  the  sole  and  chief  Roman  bishop,  while 
Peter  should  be  considered  as  bishop  of  Antioch,  as  is  evident 
in  the  second  chapter  of  the  letter  to  the  Galatians.  I  do  not 
deny  that  Peter  was  bishop  of  Rome,  but  I  hold  it  to  be  very 
probable  that  in  this  he  did  not  precede  but  rather  followed 
Paul." 

The  Petrine  legend  is  thus,  so  far  as  the  essence  of  it  is  con- 
cerned, thoroughly  demoUshed.  MarsigUo,  Uke  any  fair 
minded  Protestant  controversiahst,  is  wilhng  to  admit  the 
great  probabiUty  of  Peter's  presence  in  Rome  and  even  that  he 
may  have  had  some  such  leadership  in  the  Christian  commun- 
ity there  that  he  may  fairly  be  described  as  its  ''bishop." 
What  he  will  not  admit  for  a  moment  is  that  he  was  in  any 
special  sense  designated  in  any  way  as  the  divinely  ordained 
head  of  the  Roman  Christians.  Still  less  will  he  admit  that, 
whatever  leadership  Peter  may  have  had  at  Rome,  this  was  of 


MARSIGLIO  OF  PADUA,  DEFENSOR  PACIS  47 

such  a  nature  as  to  give  to  his  successors  there  any  shadow  of  a 
right  over  the  successors  of  the  other  Apostles  in  their  several 
districts.  In  so  far  as  the  papal  supremacy  rests  upon  the 
Petrine  argument,  the  author  of  the  Defensor  Pads  rejects  it 
absolutely.  Never,  in  the  hottest  controversies  of  the  Reforma- 
tion period  was  this  line  of  attack  followed  more  completely 
or  more  convincingly.  Never,  with  all  the  resources  of  modern 
scholarship  has  anything  essential  been  added  to  the  chain  of 
evidence  which  has  shown  the  weakness  of  the  Petrine  claim  as 
the  basis  of  papal  supremacy.  MarsigHo  is  the  pioneer  in  the 
use  of  a  strictly  historical  method  in  examining  the  foundations 
of  the  imposing  structure  of  the  mediaeval  church.  We  have 
here  no  metaphysical  speculation  and  no  appeal  to  formal  logic. 
The  Papacy  claimed  to  rest  on  a  series  of  historical  facts; 
MarsigUo's  contribution  was  to  show  the  instabihty  of  these 
alleged  facts.  Other  and  far  more  vaUd  grounds  for  the  Roman 
supremacy  there  were  indeed,  but  at  this  point  MarsigHo  is  not 
concerned  with  them.  For  the  moment  it  is  the  Petrine  ques- 
tion and  that  alone  which  holds  his  attention,  and  to  this  he 
clings  with  extraordinary  consistency  until  he  has  disposed  of  it 
in  all  its  details. 

Quite  distinct,  as  we  have  already  seen,  from  the  essential 
quaUty  of  the  priest  as  the  dispenser  of  divine  law  to  the  faith- 
ful is  the  function  of  assigning  specific  clergymen  to  special 
territories  and  of  determining  their  relation  to  the  means  of 
support.  Marsiglio  now  addresses  himself  to  the  task  of  de- 
fining more  accurately  this  latter  process,  in  other  words  of 
describing  the  actual  and  the  ideal  conditions  of  the  system  of 
benefices  that  formed  the  basis  of  so  enormous  a  part  of  the 
curial  activities  of  his  day.  From  what  source  did  this  control 
of  the  clerical  forces  of  Christendom  originate?  True  to 
his  guiding  principle  Marsiglio  declares  that  in  the  beginning, 
especially  before  the  conversion  of  the  nations,  the  active  cause 
{causa  Jactiva)  ■■.  i  this  secondary  determination  of  place  and 
condition  of  living  v^as  either  the  whole  -  cdy  of  the  Apostles 
or  some  one  of  them,  as  circumstances  might  dictate.  Then, 
after  the  time  of  the  Apostles  and  the  early  Fathers,  by  a 
certain  order  of  succession  and  especially  in  communities  that 


48  MARSIGLIO  OF  PADUA,  DEFENSOR  PACIS 

were  already  completely  developed  (jam  perfectis)  the  immedi- 
ate active  source  has  been  and  ought  to  be  either  the  whole 
body  of  the  faithful  in  the  given  community  acting  through  its 
own  voluntary  election,  or  else  the  individual  or  individuals  to 
whom  the  community  has  committed  authority  to  carry  out 
such  arrangements.  Such  trustee  of  the  community's  interests 
may  be  compelled  by  it  to  take  action  or  may  at  its  discretion, 
be  removed  from  office.  In  well  organized  communities  it  is 
the  human  Lawgiver  alone  who  has  the  duty  of  selecting, 
prescribing,  and  presenting  the  persons  who  are  to  be  raised  to 
ecclesiastical  orders.  No  priest  or  bishop  alone  and  no  college 
of  priests  may  assist  any  one  to  obtain  ecclesiastical  rank  with- 
out permission  of  the  human  Lawgiver  or  of  the  prince  who 
rules  by  its  authority. 

As  to  the  temporalia  (usually  called  benefices),  Marsiglio 
reminds  us  again  that  these  are  established  either  by  the 
community  for  the  support  of  ministers  of  the  Gospel  "and 
other  persons  deserving  compassion  (miserahiles) ,"  or  else  by 
some  individual  or  corporation.  In  the  former  case  the  Law- 
giver alone  has  the  right  to  appoint  and  remove  officials  who 
shall  present  to  the  clerical  office.  In  the  latter,  this  right 
belongs  to  the  donor  or  donors,  always,  however,  subject  to 
correction  by  the  Lawgiver  in  any  doubtful  case.  The  chmax 
of  this  chapter  is  reached  in  Marsiglio's  doctrine  of  ecclesiasti- 
cal taxation.  ''And  again,  from  what  has  been  said  it  must  be 
clear  that  the  human  Lawgiver  or  the  prince  ruling  by  its 
authority,  in  case  there  is  a  surplus  above  the  needs  of  the 
ministers  of  the  Gospel,  arising  from  ecclesiastical  property, 
especially  from  real  estate,  may  lawfully  collect  taxes  and 
revenues  therefrom  according  to  both  human  and  divine  law, 
for  the  defence  of  the  country  or  the  redemption  of  captives  as  a 
service  to  religion,  or  for  carrying  on  public  works  or  other 
reasonable  purposes  according  to  the  judgment  of  the  Christian 
Lawgiver.  For  the  grantor  of  such  temporalities  to  an  indi- 
vidual or  a  corporation  for  pious  uses  may  not  grant  them  with 
any  greater  immunity  than  they  had  while  they  were  in  his 
possession.  They  were  not  exempt  from  public  burdens  then, 
and  cannot  be  so  after  their  transfer  by  a  donor  or  founder  into 
the  possession  of  another." 


MARSIGLIO  OF  PADUA,  DEFENSOR  PACIS  49 

Having  thus  disposed  of  the  Petrine  claim  of  the  Roman 
bishopric  to  supremacy  over  others  and  so  over  the  Church  as  a 
whole,  Marsiglio  proceeds  to  examine  those  other  claims  which 
may  be  summed  up  in  the  one  word  "historical."  He  cites 
his  authorities,  including  here  especially  the  collection  of 
canon  laws  known  by  the  name  of  Isidore.  In  his  estimate 
of  the  authenticity  of  these  authorities  he  stands  on  the  level  of 
his  own  time,  neither  higher  nor  lower.  He  accepts,  not  only 
the  Donation  of  Constantine  with  certain  reservations,  but  also 
the  Forged  Decretals,  now  universally  admitted  to  be  a  fabri- 
cation of  the  ninth  century,  but  then  received  as  undoubted 
evidence  of  a  certain  right  of  dictation  by  Rome  to  tne  other 
churches  in  the  period  before  Constantine.  Marsiglio  sums 
up  his  results  as  follows : —  During  the  whole  of  that  period  no 
bishop  exercised  any  coercive  jurisdiction  over  other  bishops. 
What  happened  was,  that  many  bishops  in  other  provinces, 
when  they  were  in  doubt  regarding  Holy  Scripture  or  the 
correct  practice  of  the  Church,  since  they  did  not  venture  to 
come  together  openly,  consulted  the  bishop  and  the  church  at 
Rome.  They  did  this  because  of  the  greater  number  and  the 
greater  experience  (peritia)  of  the  Roman  Christians,  since 
the  pursuit  of  all  kinds  of  learning  flourished  greatly  at  that 
time  in  Rome,  and  in  consequence  its  bishops  and  priests  were 
better  schooled  than  those  in  other  places.  Furthermore,  they 
were  held  in  greater  reverence  on  account  of  Peter,  the  senior 
of  the  Apostles,  who  was  said  to  have  been  bishop  there,  and 
of  Paul,  of  whom  the  same  is  even  more  probable.  The  same 
kind  of  respect  was  paid  to  the  City  of  Rome  as  the  capital  and 
most  famous  city  of  the  world. 

These  are  all  practical  reasons,  historically  justified.  Marsig- 
ho's  implication  is  plain:  if  it  had  been  possible  for  the  provin- 
cial bishops  to  come  together  they  would  have  fallen  back 
upon  the  fundamental  right  of  the  community  to  determine 
its  rules  of  practice  for  itself.  In  the  absence  of  this  possibility, 
they  turned  to  the  most  obvious  source,  the  center  toward 
which  the  provincial  looked  for  direction  in  all  matters  of  legal 
or  poUtical  import.  They  appUed  to  Rome  for  suitable  direc- 
tors of  their  spiritual  interests,  because  such  persons  abounded 
at  Rome.    Their  appUcations  were  met  by  the  Roman  Chris- 


50  MARSIGLIO  OF  PADUA,  DEFENSOR  PACIS 

tians  in  a  spirit  of  fraternal  affection  {charitative  atque  fraterne) 
and  bishops  were  sent  out  ("though  men  could  scarcely  be 
found  who  were  wilUng  to  accept  this  office").  So  also  the 
Roman  orders  were  communicated  to  the  provincial  churches, 
and  dissensions  among  them  were  heard  and  disposed  of  in 
Christian  love.  "But  now,  from  this  priority  of  custom  and 
the  voluntary  acquiescence  of  the  other  churches  the  bishops 
of  Rome  went  on  successively  to  assume  a  more  ample  author- 
ity and  to  issue  decretals  or  ordinances  for  the  whole  Church 
in  matters  pertaining  to  church  practice  and  to  the  conduct 
of  the  clergy,  down  to  the  time  of  Constantine.  That  emperor 
seems  to  have  exempted  the  clergy  from  the  coercive  jurisdic- 
tion of  the  civil  authorities.  He  seems  also  to  have  given  to 
the  church  of  Rome  and  to  its  bishop  rights  and  powers  over 
all  other  bishops  and  churches,  which  they  now,  however,  as 
we  have  already  shown,  claim  to  be  derived  from  another 
source"  (namely,  the  Petrine  succession). 

MarsigUo  has  thus  clearly  indicated  that  in  so  far  as  the 
Roman  bishopric  represents  an  ancient  and  honorable  tradi- 
tion of  sound  doctrine  and  correct  practice,  he  is  ready  to  admit 
its  claim  to  the  reverence,  and,  within  Hmits,  even  to  the 
obedience  of  Christendom.  What  he  will  not  admit  is  any 
such  basis  of  divine  appointment  as  entitles  Rome  to  unques- 
tioning obedience  and,  least  of  all,  to  any  coercive  jurisdiction 
over  other  bishoprics  or  over  civil  powers.  In  developing  this 
opposition  he  asks  first :  —  to  what  writings  must  the  Christian 
man  give  absolute  acceptance  as  a  condition  of  salvation? 
His  answer  is,  that  in  the  first  place  Holx-Smpture  is  to  be 
assumed  as  true  and  accepted  with  steadfast  faith  {firma 
creduUtas).  The  same  kind  of  faith  is  to  be  given  also  to  such 
interpretations  of  Scripture  as  are  declared  by  a  General  Coun- 
cil to  be  vahd,  because  the  decision  of  such  a  council  is  inspired 
by  the  Holy  Spirit  and  therefore  cannot  err.  On  the  other 
hand,  no  such  implicit  faith  is  to  be  given  to  any  writing  in 
which  there  is  a  possibiUty  of  human  error.  This  is  the  weak 
point  {hoc  patiuntur)  of  writings  emanating  from  an  individual 
or  a  restricted  corporation  (collegii  partialis).  Such  writings 
as  experience  shows,  may  be  lacking  in  truth,  which  is  not  the 


MARSIGLIO  OF  PADUA,  DEFENSOR  PACIS  51 

case  with  the  canonical  Scriptures.  MarsigUo  quotes  Augus- 
tine in  confirmation  and  closes  his  inquiry  thus :  "St.  Augustine, 
therefore,  understood  by  canonical  writings  only  those  which 
are  contained  in  the  Bible  and  not  the  decretals  or  decrees  of 
the  Roman  pontiff  or  of  the  college  of  liis  priests  whom  they 
call  "cardinals,"  nor  any  other  human  ordinances  whatsoever 
concerning  human  actions  or  contentions  and  devised  by 
human  ingenuity.  For  "canon"  means  rule  or  standard,  a 
standard  because  it  is  something  certain,  something  that  is 
pecuhar  to  Holy  Scripture  alone  as  compared  with  other 
writings." 

VIII 

Where,  then,  are  we  to  look  for  such  authoritative  interpre- 
tation of  Christian  faith  and  practice  as  shall  secure  the  Church 
against  those  errors  and  schisms  which  MarsigUo  recognizes 
as  fatal  to  the  essential  unity  of  Christendom?  His  answer 
may  fairly  be  described  as  the  first  proclamation  in  the  century 
long  campaign  which  was  to  result  in  the  great  series  of  General 
Councils,  whereby  the  whole  structure  of  the  Church  was  to 
be  essentially  modified.  If  one  seeks  a  point  where  Pre-Re- 
formation  history  may  be  said  to  begin,  one  finds  it  as  distinctly 
marked  here  as  anywhere.  For  it  is  from  this  point  on  that 
the  demand  for  a  council  which  should  be  radically  different 
from  any  of  those  partial  assembUes  which  in  the  mediaeval 
period  had  claimed  universal  authority  grows  more  and  more 
insistent.  As  Marsigho's  doctrine  of  the  People  as  the  source 
of  law  penetrated  jnore^deeply  and  more  wi3e]^iifOEe3on- 
sciousnessj^f  thrnking  men,  the  feeling  that  this  same  principle 
must  be  extended  to  the  Church  as  well  grew  more  intense, 
until  it  culminated  in  an  irresistible  demonstration. 

The  twentieth  chapter  of  the  second  book  of  the  Defensor 
Pads  contains  Marsigho's  program  for  a  working  General 
Council.  Its  monumental  importance  justifies  a  more  ample 
treatment  than  we  have  given  to  any  other  portion  of  his 
argument.  The  problem  of  the  Council,  he  says,  is  the  settle- 
ment of  doubtful  and  sometimes  contradictory  opinions  of 
learned  men  in  regard  to  the  divine  law.     "I  propose  to  show 


52  MARSIGLIO  OF  PADUA,  DEFENSOR  PACIS 

that  the  principal  authority  for  such  a  settlement,  be  it  mediate 
or  immediate,  is  that  of  a  General  Council  of  Christian  men 
or  of  the  majority  of  them  or  of  those  to  whom  such  authority 
is  deputed  by  the  whole  body  of  believers.  The  method  is 
this:  Let  all  the  more  important  provinces  and  communities 
of  the  world,  according  to  the  determination  of  their  human 
lawgivers,  whether  their  government  be  unified  or  manifold, 
and  in  proportion  to  the  number  and  quaUty  of  the  inhabitants, 
select  pious  men,  first  priests  and  then  laymen,  suitable  persons 
of  blameless  life  and  skilled  in  the  divine  law.  These  are  to 
act  as  judges  (in  the  first  meaning  of  that  word),  i.  e.,  as  experts 
representing  the  whole  company''  of  believers.  They  are  to 
assemble  in  virtue  of  the  authority  committed  to  them  by 
their  several  communities  (universitates) ,  in  a  place  selected 
by  the  majority  of  them  or  of  their  lawgivers,  and  there  are  to 
settle  matters  pertaining  to  the  divine  law  which  may  appear 
doubtful,  determining  what  things  are  useful,  what  are  expe- 
dient and  what  are  necessary.  They  have  further  to  decide 
with  regard  to  other  matters  concerning  the  church  ritual  or 
divine  worship  as  shall  best  conduce  to  the  peace  and  order 
of  the  faithful." 

Attendance  at  the  Council  is  to  be  obUgatory,  enforced  if 
necessary  by  the  civil  authority.  Priests  are  bound  to  this 
duty  by  the  nature  of  their  office;  but  laymen  also,  if  selected 
to  serve,  are  equally  under  obligation  to  be  present  and  to 
assist  in  the  discussion  of  matters  affecting  the  common  welfare. 
Such  a  council  is  vested  with  final  authority  in  the  matters 
presented  to  it,  and  this  excludes  the  final  authority  of  "any 
one  single  person  or  college."  A  proof  of  the  need  of  lay 
co-operation  at  councils  is  found  in  the  historical  fact,  that  in 
those  of  the  early  Church  Christian  emperors  and  empresses 
with  their  court  officials  were  present  and  aided  in  the  settle- 
ment of  doubtful  points.  If  this  was  proper  then,  how  much 
more  so  now,  when  the  throng  of  priests  and  bishops  ignorant 
of  the  divine  law  is  so  much  greater.  When  priests  differ 
among  themselves  as  to  what  must  be  beUeved  in  order  to 
attain  eternal  life,  the  decision  must  rest  with  the  majority  of 
the  faithful. 


MARSIGLIO  OF  PADUA,  DEFENSOR  PACIS  53 

"If  the  Pope  of  Rome  or  any  other  single  bishop  had  author- 
ity of  this  sort,  or  if  the  letters  and  decrees  of  the  Roman 
pontiff  were  of  equal  authority  with  the  decisions  of  a  General 
Council,  then  all  the  governments  of  the  world,  all  kingdoms 
and  provinces  and  all  persons  of  whatsoever  dignity  or  pre- 
eminence or  condition,  would  be  subject  to  the  coercive 
jurisdiction  of  the  Roman  bishop.  For  this  is  what  Boniface 
the  Eighth  declared  in  his  letter  or  decree  beginning  "Unam 
sanctam  catholicam  ecclesiam"  and  ending:  "We  proclaim, 
declare  and  establish,  that  henceforth  it  is  a  necessary  article  of 
faith  that  every  human  creature  is  subject  to  the  Roman 
pontiff."  .  .  .  Now,  however,  it  is  clear  that  this  is  false  from 
the  beginning,  the  most  injurious  of  all  imaginable  falsehoods 
to  the  welfare  of  all  civilized  peoples."  Its  falsity  and  its  folly 
are  shown  by  the  decree  "Meruit"  of  Clement  V,  which 
expressly  exempts  the  king  and  people  of  France  from  its 
operation. 

In  early  times  matters  of  doubt  could  be  settled  by  assembUes 
of  the  clergy  alone.  "Now,  however,  on  account  of  the  cor- 
ruption of  the  church  administration,  the  greater  part  of  the 
priests  and  bishops  are  but  little  versed  in  sacred  Scripture,  so 
that  the  temporalities  of  benefices,  are  gained  by  greedy  and 
litigious  office  seekers  through  servility  or  importunity  or 
bribery  or  physical  violence.  And,  before  God  and  the  com- 
pany of  the  faithful,  I  have  known  numbers  of  priests,  abbots, 
and  other  church  dignitaries -of  such  low  quahty  that  they  could 
not  even  speak  grammatically.  And  what  is  worse,  I  have 
known  and  seen  a  man  less  than  twenty  years  of  age  and  almost 
completely  ignorant  of  the  divine  law  entrusted  with  the  office 
of  bishop  in  a  great  and  important  city  when  he  not  only  lacked 
priestly  ordination,  but  had  not  passed  through  the  diaconate 
or  subdiaconate." 

The  General  Council  thus  defined  is  to  be  called  together  by 
the  human  Lawgiver  and  is  to  act  under  the  special  protection 
and  supervision  of  the  ruler  who  represents  the  Lawgiver.  It 
is  clear,  says  Marsiglio,  that  this  cannot  be  the  function  of  the 
Roman  bishop  or  of  the  College  of  Cardinals,  because,  if  he 
alone  or  with  them  were  to  be  accused  of  crimes  requiring  the 


54  MARSIGLIO  OF  PADUA,  DEFENSOR  PACIS 

judgment  of  a  council  it  is  highly  probable  that  he  would  delay 
calling  it,  or  would  put  it  off  entirely  to  the  grave  injury  of  the 
body  of  the  faithful.  This  temptation  does  not  exist  for  the 
faithful  Lawgiver  or  the  community  of  beUevers,  since  they 
or  the  majority  of  them  are  not  easily  to  be  corrupted.  Further- 
more the  enforcement  of  the  conciliar  decrees  against  all 
offenders,  clerical  as  well  as  lay,  belongs  to  the  human  Lawgiver 
or  to  his  representative,  the  temporal  ruler.  This  right  extends 
even  to  making  statutes  regulating  the  government  of  the  Holy 
See  and  the  election  of  the  Roman  pontiff.  It  includes  a  mul- 
titude of  details  such  as  fasts,  restrictions  of  marriage  within 
certain  degrees  of  relationship,  charters  to  new  religious  orders, 
imposition  of  penalties  in  person  or  property.  'Tor  it  were  a 
scandal  to  the  peace  and  order  of  the  community  of  the  faithful 
if  an  ignorant  or  malicious  priest  or  bishop  or  any  college  of 
them  should  excommunicate  a  prince  or  lay  an  interdict  upon 
a  province." 

The  Council  is  to  be  the  supreme  and  final  judge  in  regard  to 
assignments  to  benefices,  the  issuing  of  hcenses  to  teach,  notarial 
commissions  and  similar  grants.  If  the  principle  of  the  "  Unam 
Sanctam''  were  to  be  enforced,  it  would  mean  the  gravest 
danger  or  even  complete  ruin  to  all  civil  governments.  "In 
his  edicts  against  the  noble  Ludwig,  Duke  of  Bavaria,  accepted 
as  King  of  the  Romans,  a  certain  person  called  Roman  Pope, 
professes  to  be  deahng  only  with  the  Roman  kingdom  or  empire, 
but  in  reaUty  he  includes  all  governments,  ascribing  to  himself 
plenitude  of  power  and  thus  covering  all  other  kings  as  well  as 
the  prince  of  the  Romans.  This  bishop,  I  say,  is  seeking  juris- 
diction over  all  the  princes  of  the  earth  in  order  to  control  the 
granting  of  benefices  and  tithes,  and  is  thus  stirring  up  sedition 
especially  throughout  the  whole  Roman  Empire."  Hence 
follows  the  duty  of  the  human  Lawgiver  (i.  e.  the  People)  and 
of  the  prince  representing  it  to  watch  this  whole  business  of  the 
church  temporaUties  and  to  see  to  it  that  if  there  is  any  surplus 
beyond  the  needs  of  the  clergy  it  be  devoted  to  the  necessities 
of  the  pubhc  defence  or  other  service  to  the  community. 

The  most  impressive  feature  of  this  conciUar  scheme  is  its 
representative  character.     It  proceeds  from  the  base  of  the 


MARSIGLIO  OF  PADUA,  DEFENSOR  PACIS  55 

social  structure  upward  to  its  higher  levels,  not  from  above 
downward.  The  unit  of  representation  is  the  local  commiinitv 
acting  on  the  initiative  of  its  own  civil  authorities.  The  dele- 
gates^  clerical  as  well  as  lay,  are  to  act  in  virtue  of  the  authority 
deriyedfrom  the  community,  not_in  virtue  of  any  essential 
quality  of  their  own.  The  clerical  members,  to  be  sure,  have 
an  especial  quahfication  a^s  experts  in  faith  and  morals,  but 
only  as  such.  Their  ogimoas  are  to  command  respect  only 
upon  their  individual  merits.  Even  the  selection_of  the  place 
of  meeting,  always  a  consideration  of  great  importafice,  is  to  be 
in  the  hands  of  the  delegates  themselves  or  of  their  constituent 
communities,  an  obvious  precaution  against  ''packing"  by 
any  centraUzed  authority.  The  choice  of  delegates  is  to  rest 
partly  upon  a  numerical  basis,  partly  upon  that  estabUshed 


distinction  of  social  classes  which  no  rational  schemeoTreTorm 
in  the  fourteenth  century  could  wholly  ignore. 

It  is  in  this  matter  of  the  General  Council  that  the  intel- 
lectual kinship  of  MarsigUo  and  William  Ockham  is  most 
clearly  manifest.  In  Ockham's  most  famous  treatise,  the 
Dialogue  ^  between  an  inquiring  Scholar  and  a  somewhat  ap- 
pallingly learned  but  affectedly  reluctant  Magister  written  about 
1340  we  have  an  elaborate  discussion  of  the  nature  and  powers 
of  the  Council  analogous  at  almost  every  point  with  that  of 
Marsiglio.  As  the  latter  bases  his  argument  upon  the  funda- 
mental right  of  the  whole  body  of  citizens  to  act  immediately 
and  directly  in  matters  of  interest  to  all,  so  Ockham,  the 
professional  champion  of  the  new  philosophy  of  NominaUsm, 
starts  with  the  conception  of  a  state  or  of  a  church  as  an  aggre- 
gate of  individuals,  bound  together  indeed  by  common  inter- 
ests, but  not  thereby  divested  of  their  essential  individual 
quahty. 

An  illustration  of  this  principle  and  at  the  same  time  of 
Ockham's  logical  method  is  found  in  his  discussion  of  the  ques- 
tion whether  a  General  Council  can  fall  into  error  in  a  matter 
of  faith.  (Dial.,  Part  I,  Book  iii,  ch.  25).  "Individuals, 
hable  to  error  when  they  were  in  divers  places,  continue  to  be 

1  Dialogus  Magistri  Guillermi  de  Ockam  doctoris  famosissimi,  in  Goldast, 
Monarchiae  S.  Romani  Imperii  etc.     Frankfurt,  1668.  II,  pp.  392-957. 


56  MARSIGLIO  OF  PADUA,  DEFENSOR  PACIS 

so  liable  when  they  come  together  in  one  place.  Their  coming 
together  does  not  prevent  some  of  them  from  being  perverted 
in  their  faith  {inohliquabiles) .  For,  as  the  place  does  not 
sanctify  the  man,  so  the  place  can  confirm  no  man  in  his  faith. 
...  If  a  hundred  or  two  hundred  bishops  were  (formerly) 
liable  to  fall  into  heresy  through  their  own  wills,  they  could 
do  the  same  after  coming  together." 

Ockham  plays  with  this  argument,  twisting  it  back  and 
forth  with  every  possible  device  of  logic  through  page  after 
page  until  he  finally  forces  it  to  its  logical  outcome.  The 
General  Council  may  err;  the  pope  and  the  cardinals  may  err; 
is  it  possible  that  the  whole  body  of  Christians  should  fall  into 
error?  The  Scholar  asks  the  question,  and  the  Magister  re- 
plies: ''Well,  Jews,  Saracens,  and  Pagans  firmly  believe  that 
the  Christian  faith  is  erroneous."  ''But  I  wasn't  asking  for 
their  opinion,"  replies  the  Scholar,  "I  meant  to  ask  whether 
any  Christians  believe  this,  and  among  Christians  I  include 
also  heretics." 

Mag.     "I  never  heard  of  a  Christian  who  believed  this." 
Sch.     "And  yet,  perhaps  you  could  think  up  some  reasons  for 

such  an  opinion." 
Mag.     "A  false  question  can  be  answered  only  by  sophistical 

reasoning." 
Sch.  "True;  but  oftentimes  false  propositions  can  be  sup- 
ported by  reasons  that  are  plausible  and  hard  to  controvert. 
So,  will  you  kindly  try  to  invent  some  of  these?" 
The  Magister  then  goes  on  to  say,  that  one  reason  why  aU 
Christians  might  fall  into  error  is,  that  belief,  whether  of  the 
individual  or  of  the  group,  is  not  self-evident  but  is  a  matter 
of  will,  and  the  human  will  is  always  liable  to  error.  Another 
reason  is  as  follows:  "No  one  can  deny  that  all  Christians  ex- 
cepting two  bishops  might  become  heretics.  Now,  these  two 
bishops  might  fall  into  heresy,  because  God  can  have  no  greater 
care  for  them  than  he  had  for  our  first  parents,  and  he  per- 
mitted them  to  lapse  from  the  faith.  Finally,  it  is  clear  that 
any  aggregate  (ilia  multitudo)  of  Christians  might  err,  provided 
only  that  Christ's  promise  that  his  faith  should  abide  forever 
be  preserved  inviolate.     Now,  if  all  living  Christian  men  and 


MARSIGLIO  OF  PADUA,  DEFENSOR  PACIS  57 

women  should  become  heretics,  still  this  promise  would  be 
preserved  through  the  aggregate  of  baptized  children." 

Sophistical  reasoning  indeed!  And  yet,  however  fantastic 
this  game  of  logic-chopping  may  appear  to  us,  it  certainly  ex- 
presses the  very  essence  of  that  new  mental  attitude  of  which 
WilHam  Ockham  was  the  chief  exponent.  In  the  last  resort 
it  was  no  single  official  or  college  or  assembly  or  class  or  sex 
or  age  that  could  give  a  final  verdict  in  a  matter  of  faith.  All 
these  might  fail;  but  even  so,  somewhere  within  the  body  of 
Christians  must  be  found  that  mystical  witness  to  the  truth 
which  should  ensure  its  permanence. 

In  spite  of  Ockham's  metaphysical  conclusion  that  no  specific 
portion  of  the  faithful  is  exempt  from  error,  he  recognizes  the 
General  Council  as  practically  the  efficient  representative  of 
the  Church  as  a  whole.  There  was  a  time,  says  the  M agister, 
when  the  Church  was  so  small  that  its  members  could  all  come  |  ^ 
together.  Now  that  this  is  impossible  the  next  best  thing  is  [I 
to  secure  a^riie_re£(resentation.  "Therefore,  if  the  several  \\ 
parts  of  the  Church  universal  elect  certain  delegates  to  come 
together  to  take  action  in  regard  to  the  Church  of  God,  these 
delegates  in  their  assembly, —  even  though  there  be  no  lawful 
pope  —  may  be  called  a  General  Council."  The  method  of 
convening  such  a  Council  may  be  as  follows:  "Let  each  parish 
or  other  community  which  can  conveniently  hold  a  meeting 
send  one  or  more  persons  to  a  synod  of  the  diocese  or  to  the 
court  (parlamentum)  of  the  king  or  prince  or  other  civil  govern- 
ment, and  these  shall  choose  delegates  to  the  General  Council. 
Those  who  are  thus  chosen  by  the  diocesan  or  "parfiamentary" 
councils,  coming  together,  may  be  called  a  General  Council." 

Ockham  admits  that,  as  a  rule  (regulariter)  a  true  council 
cannot  be  called  without  the  authority  of  a  pope;  but,  if  the 
pope  be  heretical,  or  the  cardinals  fail  to  choose  a  new  one,  then 
the  primitive  right  of  the  Church  to  act  re-asserts  itself. 
"Papal  authority  is  never  to  be  interpreted  to  the  prejudice  of 
the  Christian  faith,  for  that  is  superior  to  any  pope,  even  to  a 
catholic  one."  As  to  membership  in  the  Council,  Ockham  like 
Marsigho  insists  upon  the  participation  of  laymen,  but  goes 
beyond  him  in  at  least  apparently  advocating  the  admission  of 


68  MARSIGLIO  OF  PADUA,  DEFENSOR  PACIS 

women.  He  touches  the  point  briefly  and  with  a  shade  more 
than  his  usual  caution  (c.  85) :  ''The  participation  of  women  is 
defended  on  the  ground  of  the  identity  of  the  faith  in  men  and 
women,  which  includes  all  and  in  which  is  neither  male  nor 
female.  Therefore,  where  the  wisdom,  the  gentleness  (bonitas), 
and  the  strength  of  women  are  necessary  to  a  consideration  of 
the  faith,  women  are  not  to  be  excluded  from  a  General 
Council." 

IX 

In  what  sense  then,  if  in  any,  would  Marsigho  accept  the 
headship  of  any  one  church  or  any  one  bishop  over  others? 
He  answers  this  question  in  detail  in  the  twenty-second  chapter 
of  his  second  book.  Unity  is  essential  to  the  well-being  of  the 
Church.  This  unity  can  best  be  secured  through  a  unified 
administration.  A  single  headship  is,  therefore,  advisable; 
but  of  what  sort  and  under  what  hmitations?  Marsigho  gives 
four  possible  interpretations  of  the  principle  of  headship. 
First,  in  such  sense  that  all  utterances  of  the  accepted  head 
must  be  received  by  all  believers  as  necessary  to  salvation. 
Second,  that  all  clergymen  or  colleges  of  them  are  subject  to 
the  coercive  jurisdiction  of  the  supreme  pontiff.  Third,  that 
he  or  his  special  college  has  the  sole  right  of  assigning  benefices 
and  distributing  their  emoluments.  All  three  of  these  con- 
ceptions of  supreme  pontifical  right  Marsigho  has  already 
discussed  and  rejected  in  toto. 

There  remains  a  fourth,  the  details  of  which  are  laid  down  at 

considerable  length.     According  to  this  view,  the  basis  of  any 

y    I  single  headship  of  the  Church  is  to  be  found  in  the  approval  of  a 

/  General  Council  or  of  the  human  T.awfflver.     The  functions 

/  of  the  Head,  who  is  always  to  act  in  accord  with  a  college  of 

\   priests  assigned  to  him  for  this  purpose  b}'^  the  Lawgiver  or  by  a 

General  Council,  are  as  follows:   First,  to  notify  the  Lawgiver 

whenever  a  case  is  brought  before  him  of  such  importance  that 

it  seems  to  require  the  action  of  a  council,  in  order  that  the 

summons  to  the  council  may  be  duly  issued  by  the  Lawgiver  as 

set  forth  above.     Second,  to  "hold  the  chief  place  at   the 

council."     (Whether  this  implies  a  presidency  in  the  modern 


MARSIGLIO  OF  PADUA,  DEFENSOR  PACTS  59 

sense,  may  perhaps  be  questioned.)  He  is  to  propose  topics  for 
discussion,  to  direct  the  drawing  up  and  certifying  of  the  record 
of  proceedings,  to  communicate  the  result  to  any  churches 
which  may  so  request,  and  to  make  himself  master  of  the 
decisions  so  that  he  can  give  instructions  in  regard  to  them. 
He  is  to  punish  their  violation  with  spiritual  penalties,  but 
always  under  direction  of  the  council  and  without  recourse  to 
any  coercive  action  against  persons  or  property.  He,  together 
with  a  majority  of  the  college  assigned  to  him  by  the  council, 
may  sit  in  judgment  upon  bishops  or  churches  in  strictly 
spiritual  matters,  but  always  with  a  right  of  appeal  to  the 
human  Lawgiver  or  to  the  General  Council. 

In  this  sense,  and  in  this  alone,  MarsigHo  thinks,  the  head- 
ship of  a  single  bishop  and  church  over  others  is  expedient  for 
the  Church  as  a  whole.  But  what  church  and  which  bishop 
shall  it  be?  Speaking  according  to  the  strictest  truth,  it  ought 
to  be  that  bishop  who  excels  others  in  purity  of  life  and  in  sacred 
learning,  and  it  ought  to  be  that  church  which  most  abounds  in 
men  of  the  highest  character  and  most  brilliant  accomplish- 
ment in  sacred  things.  But,  other  things  being  equal  or  not 
greatly  different,  it  is  the  church  of  Rome  which  comes  nearest 
this  ideal  standard.  Again  Marsigho  reviews  the  actual  or 
historical  claims  of  Rome  to  leadership  among  the  churches  and 
finds  them  vaUd.  As  before  he  yields  not  an  inch  to  the  idea  of 
apostohc  succession.  It  is  not  the  Petrine  claim,  but  the  rever- 
ence for  the  memory  of  Peter  and  Paul,  the  greatness  of  Rome 
the  City,  her  purity  of  doctrine  and  her  Christian  charity 
toward  other  and  weaker  communities,  that  make  the  soUd 
foundations  of  her  acknowledged  headship.  To  these  was 
added  the  legalisation  of  Constantine's  gift  to  make  the  struc- 
ture complete.  In  that  gift  lay  also  impUcit  the  right  of  the 
civil  power  to  control  the  action  of  the  ecclesiastical  headship 
it  had  thus  sanctioned.  As  the  basis  of  civil  power  is  found  in 
the  sovereign  people  represented  by  its  rulers,  so  the  final  con- 
trol over  the  action  of  the  ecclesiastical  head  is  vested  in  the 
General  Council,  whose  protector  and  representative  is  the 
civil  executive.  It  is  clear,  therefore,  that  the  human  Law- 
giver has   the  final   authority  to  discipline  the  head  of  the 


60  MARSIGLIO  OF  PADUA,  DEFENSOR  PACIS 

Church  and  ultimately  to  depose  him  if  he  abuse  his  power. 

With  somewhat  wearisome  iteration  MarsigUo  recapitulates 
his  version  of  the  expansion  of  the  Roman  claims  from  a  simple 
headship  of  honor  to  the  plenitudo  potestatis  of  the  ''  Unam 
Sanctam":  ''This  doctrine  has  been  expressed  by  Boniface 
the  Eighth  among  other  Roman  bishops  in  language  as  insolent 
as  it  is  harmful  and  contrary  to  the  meaning  of  Scripture,  and 
based  upon  metaphysical  demonstrations.  He  has  gone  so  far 
as  to  decree  that  the  acceptance  and  confession  of  this  power  is 
necessary  to  salvation.  And  this  opinion  has  been  followed  by 
his  successors,  Clement  V,  and  the  immediate  successor  of  this 
Clement,  a  person  called  John,  although  they  seem  to  apply 
it  only  to  the  empire  of  the  Romans.  But  if  they  rest,  as  they 
say  they  do,  upon  the  gift  of  this  plenitude  of  power  by  Christ, 
then  it  is  evident  that  it  applies  to  all  the  kingdoms  of  the  earth 
just  as  much  as  the  power  of  Christ  himself  does." 

What  then  is  this  plentitudo  potestatis  on  which  the  modern 
Papacy  bases  its  control  of  all  ecclesiastical  life  in  the  widest 
extension  of  that  term?  In  answering  this  question  Marsiglio 
indulges  once  again  his  passion  for  accurate  definition.  He  pro- 
poses eight  possible  meanings  rising  from  a  simple  jurisdiction 
in  spiritual  matters  to  that  absolute  authority  which  belongs  to 
the  words  of  Christ  alone.  All  these  meanings  he  rejects  as 
sufficiently  covered  by  what  he  has  already  said  as  to  the  real 
nature  of  papal  sovereignty.  Only  in  the  sense  of  a  priority 
or  leadership  (principalitas)  over  other  priests  will  he  admit  the 
use  of  the  phrase  at  all.  What  really  interests  him  here  as 
elsewhere  is  what  ought  specially  to  interest  us,  namely  the 
historical  process  by  which  the  claim  to  plenitude  of  power  has 
actually  established  itself. 

He  is  ready  to  accept  from  the  beginning  what  he  calls  a  cura 
animarum  generalis,  a  general  oversight  of  the  spiritual  life  of 
Christendom.  Thereupon  followed  —  perhaps  for  gain  —  a 
claim  to  the  power  of  absolution,  then  the  practice  of  issuing 
decrees  as  to  ritual  observances.  Then  the  imposition  of  fasts 
and  other  restrictions  upon  the  laity  as  a  means  to  avert  calami- 
ties, and  with  this  the  proclamation  of  punishments  for  viola- 
tion of  such  restrictions  —  and  all  this  under  the  guise  of  pious 


MARSIGLIO  OF  PADUA,  DEFENSOR  PACIS  61 

ceremonial.  "  But  then  the  appetite  for  wider  domination  grew 
with  its  own  increase.  Devoted  believers  began  to  be  terrified 
by  language  of  this  sort  on  account  of  their  low  condition  and 
their  ignorance  of  the  divine  law.  They  imagined  that  they 
were  bound  by  whatever  their  priests  might  tell  them,  and  so, 
through  fear  of  damnation,  bishops  of  Rome  together  with  their 
coterie  (coetu)  of  clergymen  ventured  to  issue  certain  despotic 
edicts  touching  upon  civil  affairs.  In  these  they  declared 
themselves  and  the  clerical  order,  including  some  mere  laymen, 
exempt  from  public  burdens.  They  advanced  to  the  clerical 
office  even  married  laymen,  who  were  easily  allured  by  the 
prospect  of  enjoying  immunity  from  their  obligations  to  the 
State." 

Hereupon  followed  the  practice  of  visiting  with  excommuni- 
cation all  who  attacked  in  any  way  the  persons  of  clergymen, 
and  of  calling  upon  the  civil  authorities  to  enforce  these  spiritual 
penalties  by  the  secular  arm.  And  the  worst  part  of  this  prac- 
tice was  that  this  process  of  excommunication  was  extended  to 
cover  all  cases  of  failure  to  pay  moneys  due  at  a  certain  date, 
thus  shutting  out  from  the  holy  sacraments  "those  whom  Christ 
and  the  blessed  Apostles  had  brought  into  the  Church  with  pain 
and  labor  and  the  shedding  of  their  precious  blood." 

"And,  not  content  with  this,  reaching  out  after  the  utmost 
hmit  of  secular  power,  they  have  broken  out  (proruperunt)  into 
legislation  quite  apart  from  that  of  the  civil  community, 
declaring  the  whole  clergy  exempt  from  civil  jurisdiction  and 
thus  bringing  about  pohtical  divisions  and  an  impossible  multi- 
pUcation  of  supreme  rule.  The  realm  of  Italy  is  the  root  and 
origin  of  this  pestilent  condition.  There  the  whole  scandal  had 
its  germ  and  its  development  and  as  long  as  this  continues  there 
will  be  no  end  of  civil  disorders.  For  this  power,  which  he 
gradually  and  with  sly  deception  crept  into,  the  Roman  bishop, 
of  late  through  custom,  or  rather  through  abuse,  has  seized 
upon  and,  fearing  that  he  will  be  deprived  of  it  by  the  Prince 
[i.  e.  the  emperor]  as  he  well  deserves  to  be,  on  account  of  the 
excesses  he  has  committed,  he  prevents  the  election  and  inaugu- 
ration of  the  Prince  of  the  Romans  with  every  kind  of  mahcious 
interference.     A  certain  one  of  them  has  gone  so  far  in  his 


62  MARSIGLIO  OF  PADUA,  DEFENSOR  PACIS 

insolence  as  to  proclaim  formally  that  the  Prince  of  the  Romans 
is  bound  to  him  by  a  feudal  obligation  and  subject  to  his 
coercive  jurisdiction  .  .  .  Such  despotic  ordinances  the  bishops 
of  Rome  and  their  cardinals  dared  not  call  'laws/  but  gave 
them  the  name  'decretals/  although  they  intended  them  to 
have  binding  coercive  force  in  this  world  just  as  human  law- 
makers do.  They  were  afraid  to  use  the  word  'laws'  at  first, 
dreading  the  resistance  and  correction  of  the  lawmaking  power 
and  the  charge  of  treason  against  rulers  and  legislators.  From 
the  beginning  they  called  these  'canonical  rights'  {jura 
canonica)  in  order  to  impress  the  faithful  with  their  validity  and 
to  secure  their  acceptance,  their  reverence  and  their  obedience." 
Such  is  the  nature  of  that  plenitude  of  power  upon  which  the 
extraordinary  hold  of  the  Roman  See  upon  the  church  life  of 
the  western  world  was  based.  It  remains  to  notice  some  of 
the  consequences  as  Marsiglio  saw  them  in  the  political  and 
social  conditions  of  his  day.  Here,  as  always,  he  reverts  to  his 
fundamental  principle,  the  right  of  the  whole  people  to  share 
in  the  administration  of  all  affairs  which  concern  their  welfare. 
The  effect  of  the  plenitudo  potestatis  is,  he  says,  utterly  to 
destroy  this  principle  in  the  whole  field  of  appointment  to  cleri- 
cal offices.  The  only  safe  method  of  securing  suitable  officials 
of  any  sort  is  by  election;  but  now  election  has  been  practically 
aboHshed  within  the  Church.  It  has  been  restricted  by  placing 
it  solely  in  the  hands  of  clergymen.  It  has  been  corrupted  by 
leaving  episcopal  elections  to  the  so-called  "canons,"  a  narrow 
group  of  young  men  ignorant  of  the  divine  law,  to  the  exclusion 
of  the  other  clergy  of  the  diocese.  It  has  been  crushed  out  by 
the  system  of  papal  reservations  extending  even  to  the  lowest 
offices  of  the  Church.  "Through  these  reservations  elections 
of  suitable  persons  made  according  to  law  are  quashed,  and  in 
their  place  are  thrust  ignorant,  inexperienced  and  untrained 
men,  often  of  corrupt  morals  or  notorious  criminals,  men  who 
do  not  even  speak  the  language  of  those  over  whom  they  are 
placed ....  If  you  count  them  up  you  v/ill  not  find  one  in  ten  of 
the  provincial  archbishops,  bishops,  patriarchs  and  the  clergy 
of  lower  degree  who  is  a  doctor  of  theology  or  adequately 
trained  in  that  science."     The  only  kind  of  persons  who  can 


MARSIGLIO  OF  PADUA,  DEFENSOR  PACIS  63 

secure  appointments  are  the  causidici,  men  skilled  in  legal 
quibbling,  because  they  are  ''useful"  in  gaining  and  holding  on 
to  the  temporalities,  whereas  the  doctors  of  theology  are 
"useless,"  simple  souls  who  would  allow  "the  Church"  to  fall 
into  ruin. 

As  to  the  papal  elections,  these,  says  MarsigHo,  are  seldom 
made  from  among  doctors  of  theology  but  rather  from  the 
"college  of  advocates"  in  shameless  disregard  of  Holy  Scrip- 
ture. The  College  of  Cardinals  admits  licentious  youths 
unacquainted  with  sacred  learning.  This  corruption  at  the 
center  infects  the  whole  body  of  the  Church  everywhere.  It 
leads  to  the  appointment  of  the  same  kind  of  persons  to  the 
provincial  churches.  It  involves  the  clergy  in  political  compli- 
cations, and  this  brings  about  the  appropriation  of  church 
revenues  to  the  maintenance  of  armies  and  the  continual  pro- 
motion of  quarrels  among  Christian  men. 

When  Marsiglio  speaks  of  the  power  exercised  over  clergy- 
men or  laymen  by  any  one  single  cleric  he  generally  adds  "or 
any  collegium  or  coetus  of  them. ' '  Such  references  are  obviously 
to  the  College  of  Cardinals.  He  includes  these  in  his  criticisms 
of  the  papal  maladministration,  and  evidently  thought  that 
some  radical  measures  should  be  taken  to  reform  them.  As  to 
precisely  what  such  reforms  should  be  we  get  only  one  construc- 
tive suggestion.  The  root  of  the  evils  connected  with  the 
cardinalate  was  the  vicious  system  of  appointment.  No  other 
electoral  system  in  the  whole  history  of  elective  governments 
contained  precisely  the  same  element  at  once  of  strength  and 
weakness  as  this.  Nowhere  else  do  we  find  the  electoral  body 
appointed  by  the  executive  whose  successor  it  was  their  chief 
duty  to  select.  We  speak  loosely  of  pohtical  "rings,"  but 
never  was  there  so  complete  a  ring  in  the  literal  sense  of  the 
word  as  here.  The  electoral  college  of  the  Empire  was  a  group 
of  territorial  lords  fixed  by  the  imperial  constitution  and  thus 
independent  of  all  pohtical  influence  from  the  reigning  prince. 
The  electors  of  the  Doge  in  Venice  were  evolved  from  a  com- 
plicated series  of  more  or  less  freely  elected  councils  always 
jealous  of  the  ruHng  executive  and  his  family  and  ready  to 
supplant  them  whenever  the  opportunity  should  offer.     It  was 


64  MARSIGLIO  OF  PADUA,  DEFENSOR  PACIS 

only  in  the  papal  system  that  the  ring  of  electors  and  potential 
popes  was  absolutely  closed.  The  only  restraint  upon  appoint- 
ment of  electors  was  the  individual  sense  of  propriety  of  the 
existing  pope  and  the  pressure  of  party  politics  within  and 
without  the  limits  of  the  Curia  itself. 

With  Marsiglio  may  be  said  to  begin  the  long  series  of 
propositions  for  the  reform  of  this  electoral  system  which  con- 
/tinue  all  through  the  conciUar  period  and  find  their  final 
j  expression  in  the  Council  of  Trent.  The  essence  of  all  these 
propositions  is  the  widening  of  the  electorate,  the  effort  to  make 
it  more  truly  representative  of  the  Church  as  a  whole.  Especi- 
ally was  ever  increasing  emphasis  laid  upon  the  necessity  of 
recognizing  the  growing  principle  of  nationality  as  the  basis  of 
such  representation.  In  view  of  the  radical  suggestions  made, 
for  example,  at  the  Council  of  Constance,  going  as  far  even  as 
the  abolition  of  the  College  of  Cardinals,  Marsigho's  proposals 
sound  almost  conservative.  He  aims  to  break  the  vicious  circle 
of  appointment  and  election  as  it  was  working  in  his  day.  He 
admits  the  importance  of  an  advisory  council  to  act  with  the 
pope  in  all  official  ways,  but  he  would  make  this  board  inde- 
pendent of  the  pope's  personal  influence.  He  would  have  it 
appointed  by  the  General  Council  as  the  organ  of  the  Church 
universal.  Whether  it  should  be  a  permanent  board  or  chosen 
for  specific  objects  is  not  quite  clear.  In  one  passage  referring 
to  the  duty  of  the  pope  to  notify  the  Legislator  of  the  need  of 
a  council  Marsiglio  says  that  he  shall  do  this  together  with  his 
college  of  priests  whom  the  Lawgiver  or  the  General  Council 
shall  have  seen  fit  to  associate  with  him  ad  hoc,  as  if  this  were  a 
special  assignment  of  councillors  for  a  specific  case.  Numer- 
ous other  references,  however,  suggest  rather  a  permanent 
board  to  be  selected  either  by  the  emperor  or  by  the  General 
Council  as  the  executive  organs  of  that  universitas  fidelium 
which  is  the  last  resort  in  all  matters  of  church  administration. 
Although  this  suggestion  was  never  adopted,  and  the  ancient 
method  of  appointment  of  cardinals  by  the  pope  has  continued 
to  the  present  day,  still  the  spirit  of  it  has  been  more  and  more 
recognized  in  actual  practice.  The  personnel  of  the  cardinalate 
has  in  fact  been  greatly  improved  and  made  to  correspond 


MARSIGLIO  OF  PADUA,  DEFENSOR  PACIS  65 

more  accurately  to  the  world-wide  membership  of  the  Roman 
communion.  If  one  is  willing  to  overlook  the  obvious  fact  of  a 
dominant  Italian  majority  in  the  present  college,  one  may  fairly 
describe  it  as  a  reasonably  representative  body  of  catholic 
Christendom. 

The  source  of  all  this  evil  is  that  the  Head  undertakes  to 
control  the  operation  of  all  the  members: 

''Who  would  not  regard  the  body  of  an  animal  whose  limbs 
were  joined  directly  to  its  head  as  a  monstrosity  useless  for  its 
own  proper  functions?  If  the  hand  were  fixed  directly  upon 
the  head  it  would  lack  suitable  space  and  would  be  deprived  of 
strength,  of  motion,  and  of  effectual  action.  But  this  is  not  so 
when  the  fingers  are  joined  to  the  hand,  the  hand  to  the  arm, 
the  arm  to  the  shoulder,  the  shoulder  to  the  neck,  and  the  neck 
to  the  head,  all  by  suitable  joints,  so  that  the  head  can  give  to 
each  member  its  own  proper  activity.  Thus  the  whole  body 
receives  its  appropriate  form  and  is  able  to  perform  its  normal 
functions.  So  is  it  with  the  body  of  the  Church  and  of  civil 
society  as  well.  The  universal  pastor  or  the  universal  prince 
cannot  directly  inspect  and  control  the  individual  actions  of 
every  one  throughout  all  the  provinces,  but  if  this  is  to  be  done 
decently  and  adequately  he  must  have  the  assistance  of  special 
representatives  and  agents.  In  this  way  the  body  of  the 
Church  will  be  well  ordered  and  will  grow  as  it  should.  But, 
if  we  once  admit  the  plenitudo  potestatis  of  the  Roman  pontiff, 
this  whole  beautiful  order  is  destroyed;  for  he  absolves  the 
lower  prelates  and  orders  from  the  power,  the  oversight  and 
the  correction  of  their  superiors." 

This  is  Marsiglio's  contribution  to  the  continual  conflict 
between  the  papal  and  the  episcopal  powers.  It  was  no  new 
issue.  His  criticism  of  papal  aggression  was  the  common 
protest  of  all  right  thinking  men  of  his  day  against  the  abnormal 
development  of  the  centralized  papal  administration  as  com- 
pared with  the  constantly  growing  restrictions  upon  the  local 
authorities  of  the  Church.  It  was  on  this  point  more  than  any 
other  that  the  common  interests  of  civil  governments  and  these 
local  church  powers  became  evident.  The  ahgnment  of  parties 
generally  threw  the  episcopal  order  on  the  side  of  the  govern- 


% 


66  MARSIGLIO  OF  PADUA,  DEFENSOR  PACIS 

ment  and  against  papal  aggression.  This  had  been  wonder- 
fully demonstrated  in  the  great  fight  between  the  government 
of  France  under  Philip  IV  and  the  Papacy  under  Boniface 
VIII.  Whatever  may  be  thought  as  to  the  political  methods 
of  that  far  from  scrupulous  king,  it  is  clear  that  on  the  whole  he 
carried  the  French  clergy  with  him  in  his  struggle  for  French 
independence  of  papal  dictation.  It  could  almost  be  said  that 
the  Papacy  was,  for  the  time,  converted  into  a  French  institu- 
tion. All  this  Marsigho  had  seen  at  close  quarters  from  his 
academic  residence  in  Paris.  It  was  unquestionably  this  ex- 
perience, combined  with  his  own  personal  traditions  of  Italian 
democracy,  that  gave  such  vivid  color  to  his  presentation  of  the 
,^ituation  for  the  benefit  of  the  German  Ludwig.  The  papal 
\plenitudo  potestatis  was  the  common  enemy  of  every  local  right. 
Marsiglio  did  not  overstate  the  case  in  saying,  that  if  this  were 
once  conceded  there  was  no  limit  to  the  aggression  that  must 
ensue  toward  every  form  of  government  in  both  Church  and 
State. 

His  passionate  indictment  of  the  Roman  Curia  as  a  sink  of 
bargain-driving  scoundrels  is  not  a  whit  more  venomous  than 
many  utterances  of  Dante  and  Petrarch  on  the  same  theme. 

"What  do  you  find  there  but  a  swarm  of  simoniacs  from  every 
quarter?  What  but  the  clamor  of  pettifoggers,  the  insults  of 
calumny,  the  abuse  of  honorable  men?  There  justice  to  the 
innocent  falls  to  the  ground  or  is  so  long  delayed  —  unless  they 
can  buy  it  for  a  price  —  that  finally,  worn  out  with  endless 
struggle,  they  are  compelled  to  give  up  even  just  and  deserving 
claims.  For  there  man-made  laws  are  loudly  proclaimed;  the 
laws  of  God  are  silent  or  are  rarely  heard.  There  are  hatched 
conspiracies  and  plots  for  invading  the  territories  of  Christian 
peoples  and  snatching  them  from  their  lawful  guardians.  But 
for  the  winning  of  souls  there  is  neithei  care  nor  counsel." 

Marsigho's  attacks  upon  the  morals  of  the  Curia  are  of  quite 
secondary  importance;  for  the  answer  to  such  criticism  is 
always  ready.  Evils  are  to  be  expected  in  all  institutions 
administered  by  human  beings.  The  remedy  is  to  bring  the 
administration  into  better  hands.  This  is  always  the  watch- 
word of  "reform  within  the  party";   improve  the  adminis- 


MARSIGLIO  OF  PADUA,  DEFENSOR  PACIS  67 

tration  and  the  evils  will  take  care  of  themselves.  What 
Marsiglio's  criticism  meant  was,  that  the  real  evil  was  not 
found  in  the  irregularities  he  enumerates,  but  in  the  system 
itself.    Only  by  a  thoroughgoing  reform  of  the  system  at  the'  I 

root  of  which  was  the  doctrine  of  plenitudo  potestatis,  could  / 

Christian  societies  be  safeguarded  against  unlimited  abuse  of 
power.  Marsiglio  insists  over  and  over  again  that  the  cause 
of  the  emperor  in  his  controversy  with  Pope  John  XXII  is  the 
cause  of  all  civil  governments ;  but  he  is,  of  course,  especially  '/-^ 
concerned  with  showing  the  far-reaching  consequences  of  the 
papal  claims  in  the  sphere  of  imperial  rights. 

Here  again  he  brings  the  issue  down  to  the  essential  test,  to 
the  question  of  the  basis  of  the  emperor's  claim  upon  the 
allegiance  of  his  subjects.  The  Empire  was  the  most  note- 
worthy illustration  of  his  fundamental  theory  of  the  origin  of 
all  civil  jurisdiction.  It  was  an  electivev-institution,  perpetu- 
ated by  the  direct  action  of  a  limited  electorate,  but  in  its  theory 
that  electorate  represented  the  people  as  a  whole.  In  the 
formal  statements  of  the  electoral  process,  beginning  with  the 
Sachsenspiegel  in  1230  (?)  and  closing  with  the  Golden  Bull  of 
1356,  after  the  enumeration  of  all  the  individual  electors  there 
follows  an  express  declaration  that  all  the  leading  men  (die 
vorsten  alle)  are  to  express  their  approval  of  the  choice  made  by 
the  college  of  seven.  These  leading  men  come  as  near  to  being 
the  "People"  of  Marsiglio's  theory  as  mediaeval  conditions 
could  permit.  Furthermore,  if  we  assume  the  year  1324  as  the 
date  of  the  Defensor  Pads  it  was  only  two  years  since  the 
emperor  Ludwig,  after  eight  years  of  fighting,  had  maintained 
the  verdict  of  the  electoral  college  against  the  "claims"  of  the 
Habsburg  candidate  supported  by  the  unwearied  activity  of 
John  XXII.  We  can,  therefore,  quite  understand  the  vehe- 
mence with  which  Marsiglio  makes  the  application  of  his  argu- 
ment against  the  plenitudo  potestatis  to  the  question  of  the 
imperial  electoral  right. 

"For  if  the  authority  of  the  king  elect  were  dependent  solely 
upon  the  will  of  the  Roman  bishop  the  function  of  the  electors 
would  be  absolutely  an  empty  one,  since  the  man  whom  they 
might  choose  would  neither  be  nor  be  called  "king"  until  he 


68  MARSIGLIO  OF  PADUA,  DEFENSOR  PACIS 

should  be  confirmed  by  the  papal  will  or  the  authority  of  the 
so-called  Apostolic  See,  nor  could  he  exercise  any  royal  author- 
ity.    He  could  not  even  draw  from  the  revenues  of  the  king- 
N  t\     dom  enough  for  his  daily  subsistence  without  the  approval  of 
^  that  bishop,  a  thing  intolerable  and  unheard  of.    What  then 

y         would  be  the  force  of  an  election  by  the  princes  beyond  that  of 
'^  a  nomination,  the  final  determination  of  which  would  depend 

upon  the  will  of  one  other  single  individual?    Why!    Seven 
barbers  or  seven  blind  men  could  convey  as  much  of  a  sanction 
to  the  King  of  the  Romans  as  this !     I  say  this  in  derision,  not 
^»  of  the  electors,  but  of  him  who  would  deprive  them  of  their 

[  due  authority.     For  he  does  not  understand  the  force  and  the 

theory  of  an  election,  nor  why  it  is  that  its  validity  rests  upon 
the  majority  {valentiore  parte)  of  those  to  whom  the  right  of 
election  belongs.  Nor  does  he  realize  that  the  effect  of  the 
election  ought  not  and  cannot  be  dependent  upon  the  will  of 
any  one  person,  if  it  is  conducted  according  to  rule,  but  upon 
the  Lawgiver  alone  over  whom  the  (elected)  ruler  is  to  be 
placed,  or  upon  those  alone  to  whom  the  Lawgiver  shall  have 
entrusted  this  commission.  The  Roman  bishop,  therefore, 
plainly  desires  to  destroy  the  office  of  the  electors,  no  matter 
how  much  he  may  try  to  bUnd  them  and  defraud  them." 

The  supreme  test  of  this  claim  to  control  over  the  Empire  is 
seen  at  times  of  vacancy  in  the  imperial  office. 

"Since  the  afore-mentioned  bishop  claims  the  right  to  take 
the  plp.ce  of  the  emperor  during  a  vacancy,  it  follows  of  neces- 
sity that  he  claims  also  the  right  to  compel  all  princes  and 
feudatories  of  the  Empire  to  take  oaths  of  allegiance  to  him. 
Furthermore  he  demands  the  privilege  of  collecting  all  tributes 
and  other  forms  of  taxation  regularly  due  to  the  emperor  and, 
besides  these,  other  exceptional  taxes  imposed  according  to  the 
will  of  that  bishop  in  virtue  of  his  self-constituted  plenitudo 
potestatis.  .  .  .  The  very  worst  and  most  dangerous  thing  of  all 
is,  that  thus  during  an  imperial  vacancy,  which,  at  the  will  of 
Roman  bishops  may  become  perpetual,  all  princes,  associa- 
tions, communities  and  individuals  under  the  Empire,  in  case 
of  civil  suits  among  themselves  are  compelled  to  bring  their 
suits,  real  as  well  as  personal,  by  appeal  or  by  delation  to  the 


MARSIGLIO  OF  PADUA,  DEFENSOR  PACIS  69 

court  of  the  Roman  bishop  and  subject  themselves  to  his  civil 
jurisdiction." 

The  absurd  claim  that  this  control  over  the  imperial  power  is 
necessary  in  order  to  prevent  the  election  of  an  heretical  em- 
peror is  disproved  by  the  obvious  fact  that  the  electoral  college 
contains  three  important  archbishops  who  "have  received  from 
Christ  a  sacerdotal  and  episcopal  sanction  equal  to  that  of  the 
Roman  pontiff."  The  chance  of  a  bad  selection  is  less  among 
seven  electors  than  if  the  choice  were  in  the  hands  of  the  Roman 
bishop  alone.  The  intention  of  these  people,  says  Marsiglio, 
is  none  other  than  to  cut  the  very  root  of  all  civil  allegiance. 
"For,  in  my  opinion,  the  root  and  bond  of  this  allegiance  con- 
sists in  the  mutual  and  sworn  faith  of  princes  and  peoples. 
This  faith  is,  as  Cicero  says,  the  foundation  of  all  justice.  He 
who  tries  to  break  this  bond  between  rulers  and  subjects  is 
aiming  at  nothing  less  than  to  overturn  the  power  of  all  govern- 
ments and  subject  them  to  his  arbitrary  will." 

What  then  is  the  remedy?  In  the  answer  to  this  question 
we  have  Marsiglio's  constructive  teaching.  All  his  theoretical 
arguments  are  here  brought  to  a  focus  in  a  series  of  practical 
suggestions:  "For  these  reasons  it  is  advisable  that  a  General 
Council  should  be  summoned  by  all  princes  and  peoples  after 
the  manner  I  have  recommended.  This  council  should  abso- 
lutely forbid  the  use  of  this  term  plenitudo  potestatis  by  the 
Roman  bishop  or  any  other  person  whomsoever,  that  the  people 
may  not  be  led  astray  through  long  continued  hearing  of  false 
things.  The  Roman  bishop  should  be  deprived  of  all  power  of 
conferring  ecclesiastical  office  and  of  distributing  the  temporaU- 
ties  or  benefices;  for  that  bishop  now  abuses  these  powers  to 
the  injury  of  the  bodies  and  the  damnation  of  the  souls  of  the 
faithful.  The  duty  of  calling  a  council  is  an  obhgation  resting 
upon  all  rulers,  especially  upon  kings  according  to  the  law  of 
God.  To  this  end  they  were  instituted:  to  do  justice  and  give 
judgment,  and  faihng  in  this  they  are  without  excuse  because 
they  well  know  what  scandals  will  follow  upon  their  neglect." 

Here  Marsiglio  draws  a  moving  picture  of  the  ills  that  have 
already  befallen  his  beloved  Italy  in  consequence  of  the  false 
conditions  he  has  described  and  closes  with  this  eloquent 


70  MARSIGLIO  OF  PADUA,  DEFENSOR  PACIS 

appeal:  "Who,  then,  would  be  so  brutish  a  son  of  this  father 
and  mother  land,  once  so  beautiful,  now  so  torn  and  defiled, 
as  to  be  silent  and  withold  his  spirit  from  crying  to  the  Lord 
when  he  sees  and  knows  these  things  and  is  able  to  act  against 
those  who  rend  and  betray  her?  Verily,  as  the  Apostle  says, 
"he  hath  denied  the  faith  and  is  worse  than  an  unbeliever." 

The  last  thi-ee  chapters  of  the  second  'Dictio'  are  devoted  to 
a  refutation  of  the  specific  arguments  in  defence  of  the  doctrine 
of  'plenitudo  potestatis.'  They  do  not  contain  any  noteworthy 
addition  to  the  arguments  already  put  forward  by  MarsigUo 
on  the  other  side  of  the  controversy.  Most  significant  is  the 
renewed  insistence  upon  a  sound  method  in  the  use  of  authori- 
ties. Supreme  above  all  others  is  the  authority  of  Scripture, 
and  this  is  to  be  interpreted  according  to  the  principle  of  com- 
mon sense.  Where  no  mystical  meaning  is  involved  the  Uteral 
sense  of  language  is  to  be  accepted.  Where  a  mystical  inter- 
pretation is  required,  "I  will  accept  the  more  probable  opinion 
of  holy  men.  If,  however,  they  advance  opinions  of  their  own, 
I  will  accept  those  which  are  in  harmony  with  the  canon  of 
Scripture.  Those  which  are  discordant  with  Scripture  I  will 
reverently  reject,  but  never  without  the  support  of  Scripture 
upon  which  I  shall  always  rely." 

Here  is  the  proclamation  of  those  principles  of  bibhcal 
authority  and  interpretation  which  underhe  the  activities  of  all 
the  great  leaders  of  the  Reformation  from  Wy cliff e  to  Calvin. 
In  this  doctrine  of  Scripture  is  to  be  found,  contrary  as  it  seems 
to  all  the  implications  of  present  day  thought,  the  very  essence 
of  modern  religious  liberty.  It  does  not  imply,  as  is  so  often 
charged  upon  it,  the  "slavery  to  a  book"  which  must  lead  men 
into  a  bondage  worse  even  than  that  of  an  infalhble  church. 
For  after  all,  every  Scripture  must  be  interpreted,  and  it  is  in 
this  process  of  interpretation  that  modern  hberty  has  worked 
itself  out  in  the  field  of  religion  as  everywhere  else.  The 
struggle  was  to  be  a  long  and  bitter  one,  but  the  key-note  had 
been  sounded,  and  it  was  never  again  to  lapse  into  silence. 

MarsigUo  of  Padua  is  the  prophet  of  that  new  world  of 
thought  and  action,  to  which,  in  default  of  a  better  word,  we 
give  the  name  of  "modern."    It  is  the  world  in  which  the  right 


MARSIGLIO  OF  PADUA,  DEFENSOR  PACIS  71 

of  a  man  to  think  as  he  must  and  to  associate  himself  with 
others  who  think,  on  the  whole,  as  he  does  is  the  dominating 
principle  of  social  organization.  ^Ai<<.*«  --iC'  ^■' 

X 

The  third  and  final  Dictio  of  the  Defensor  Pads  consists  of  a 
brief  summary  of  the  argument  of  the  whole  work  in  short 
paragraphs  and  with  continuous  reference  to  specific  passages 
in  the  previous  books.  It  furnishes  the  natural  basis  for  a 
review  of  what  we  may  now  fairly  call  Marsiglio's  program  for 
Church  Reform.  It  bears  much  the  same  relation  to  the 
activities  of  the  conciliar  period  as  that  of  Luther's  Ninety-five 
Theses  to  the  work  of  the  Protestant  Reformation.  It  begins 
where  the  main  body  of  the  book  ended,  with  the  doctrine  of  the 
supreme  authority  of  Scripture  intepreted  by  the  cormnon 
action  of  the  whole  community  of  the  faithful.  In  cases  of 
doubt  as  to  what  articles  of  faith  are  necessary  to  salvation,  the 
sole  power  of  decision  rests  with  the  General  Council  or  a 
majority  of  its  members  (valentior  multitudo).  No  partial 
collegium,  and  no  individual  of  whatsoever  condition  has  this 
power  of  decision.  Dispensation  from  things  prescribed  or 
prohibited  or  permitted  by  the  law  of  the  New  Covenant 
belongs  solely  to  the  General  Council  or  to  the  human  Lawgiver. 
This  Lawgiver  is  defined  as  the  whole  body  of  citizens  or  the 
majority  of  them.  Decretals  or  decrees  of  Roman  or  any  other 
bishops  whomsoever  issued  individually  or  collectively  without 
permission  from  the  human  Lawgiver  cannot  bind  anyone  by 
temporal  penalties.  Only  the  Lawgiver  or  its  agent  can  dis- 
pense from  human  laws. 

No  elective  official  who  derives  his  authority  from  election 
alone  requires  any  further  confirmation  or  approval.  No 
bishop  or  priest  has,  in  virtue  of  his  priestly  character,  coercive 
jurisdiction  over  any  clergyman  or  layman.  All  bishops  are  of 
equal  authority  through  Christ,  nor  can  it  be  proved  by  the 
law  of  God  that,  either  in  matters  spiritual  or  in  things  tempo- 
ral, one  bishop  is  higher  or  lower  than  another.  In  accordance 
with  divine  authority  and  with  the  consent  of  the  human 


72  MARSIGLIO  OF  PADUA,  DEFENSOR  PACTS 

Lawgiver,  other  bishops  acting  separately  or  together,  may  as 
properly  excommunicate  the  Roman  bishop  as  he  may  excom- 
municate them.  It  is  the  right  of  the  civil  ruler  in  accordance 
with  the  laws  of  the  Christian  community  to  fix  the  number  of 
churches  and  of  the  clergy  who  are  to  officiate  therein. 

The  right  to  summon  a  council,  general  or  special,  belongs 
solely  to  the  Lawgiver  or  to  one  who  governs  a  Christian  com- 
munity in  virtue  of  its  authority;  and  a  council  summoned  in 
any  other  way  cannot  bind  any  one  to  observe  its  decrees. 
Those  who  are  bound  to  the  perfection  of  evangelical  poverty 
may  have  no  dominium  over  any  property  whatsoever,  real 
or  personal.  Bishops  and  other  ministers  of  the  Gospel  have  a 
right  to  receive  from  individuals  or  from  the  community  what 
is  necessary  for  food  and  shelter,  but  they  have  no  right  to 
tithes  or  any  other  form  of  revenue  beyond  these  necessities. 
The  bishop  of  Rome,  as  well  as  every  other  spiritual  minister, 
ought  to  be  appointed  to  his  office  solely  by  the  Christian  Law- 
giver or  the  prince  ruling  by  its  authority  or  by  a  General 
Council  of  the  faithful  on  removable  tenure,  and  should  be 
suspended  or  deposed  from  his  ojffice  by  the  same  in  case  of 
malfeasance. 

Many  other  conclusions,  says  Marsiglio,  might  be  drawn  from 
what  he  has  set  forth,  but  he  is  content  to  leave  the  matter 
here,  beheving  that  these  will  supply  a  sufficient  line  of 
approach  (ingressum)  for  the  removal  of  this  plague  and  the 
cause  of  it  as  well.  He  thus  justifies  our  use  of  the  word 
"program"  for  the  summary  of  his  opinions  here  presented. 
It  is  not  merely  a  theoretical,  or,  as  we  say  now-a-days,  an 
"academic"  presentation  of  an  argument.  It  is  a  call  to 
action.  Although  wTitten  primarily  to  meet  the  immediate 
problems  of  the  emperor  Ludwig's  stormy  administration,  the 
Defensor  Pads  has  a  universal  appHcation  to  all  civil  govern- 
ments included  under  the  general  term  "The  Christian  Com- 
monwealth." Marsigho's  view  does  not  extend  beyond  this. 
His  whole  scheme  rests  upon  the  basic  idea  of  the  sovereignty 
of  the  People,  but  the  people  is  the  universitas  fidelium,  the 
community  of  believers.  This  people  is  the  ultimate  Lawgiver. 
It  is  represented  by  the  ruler,  and  this  ruler  is  the  princeps  or 


MARSIGLIO  OF  PADUA,  DEFENSOR  PACIS  73 

the  principans  fidelis,  the  Christian  prince.     The  personnel  of  j 

the  civil  and  the  ecclesiastical  communities  is  the  same.     There  \ 

is  no  such  thing  as  a  church  within  the  community;  the  church 
is  the  community  in  its  religious  aspect. 

This  dual  community,  however,  must  have  its  organs  of 
expression,  and  these  are  to  be  most  carefully  distinguished 
one  from  the  other.  Here  was  MarsigHo's  most  delicate  prob- 
lem. He  solved  it  by  his  careful  analysis  of  the  difference 
between  "character"  in  the  technical  sense  famiUar  to  every 
student  of  church  institutions  and  ''function"  in  the  obvious 
meaning  of  administrative  action.  The  priestly  "character," 
of  divine  ordination  and  conferred  through  certain  sacred  rites, 
gave  the  power  to  grant  absolution  and  to  perform  the  eucha- 
ristic  sacrifice  and  nothing  else.  All  beyond  this,  especially  all 
that  had  reference  to  the  temporal  activities  of  the  clergy,  was 
functional,  was  instituted  by  human  agencies  and  was,  there- 
fore, to  be  regulated  by  human  laws.  The  distinction  is  as  sharp 
as  that  between  the  organic  and  the  functional  in  the  living 
physical  body.  Just  as  any  conflict  between  the  two  in  a  livingy^ 
organism  brings  disaster  to  the  whole,  so  in  the  community  of 
social  beings  any  confusion  of  the  two  ideas  is  sure  to  resiilt  in  „^  ^^ 
an  impaired  condition  of  the  whole  social  organism.         /  ityrs-f  "^ 

That,  we  recall,  was  Marsiglio's  starting-point.     TM  curse 
of  society  in  his  day  was,  as  he  conceived,  the  corruption  of  the        ^  --< 
Church  arising  from  precisely  this  kind  of  confusion.     The    [C-C   j 
functional  activities  of   the  priestly  order  had  steadily  en- 
croached upon  the  strictly  sacerdotal,  until  there  was  danger         ^^ 


that  they  would  entirely  absorb  them.  What  was  only  func- 
tional had  come  to  call  itself  sacred  and  to  claim  the  privileges 
of  sacrosanctity.  The  lay  elements  of  the  faithful  community 
had  not  understood  the  meaning  of  this  tendency.  They  had 
let  things  drift,  but  now,  in  the  face  of  the  unparalleled  audaci- 
ties of  Boniface  VIII  and  John  XXII,  they  were  aroused  to  the 
fighting  point.  The  rulers  of  the  earth,  one  after  the  other,  were 
coming  into  conflict  with  the  one  power  in  which  these  perver- 
sions of  the  true  Christian  order  seemed  to  be  concentrated,  the 
power  of  the  Roman  bishop  and  the  collegium  which  he  domi- 
nated. 


'^ 


74  MARSIGLIO  OF  PADUA,  DEFENSOR  PACIS 

Marsiglio's  mission,  as  he  understood  it,  was  to  point  out  by 
the  method  of  historical  illustration  and  sound  technical  defi- 
nition, the  real  nature  of  this  conflict.  His  historical  material 
was  by  no  means  of  the  best,  but  his  method  in  using  it  was 
sound,  and  his  conclusions  from  it  have  borne  the  test  of  time. 
Essentially  they  have  not  been  changed  by  the  discovery  of 
better  materials  and  the  wider  experience  of  modern  historical 
science.  Marsigho  is  properly  scandaUzed  by  the  atmosphere 
of  moral  indifference  to  which,  in  common  with  all  good 
observers  of  his  time,  he  calls  attention.  But  the  gravamen  of 
his  attack  does  not  lie  in  the  all  too  easy  field  of  moral  criticism. 
Atrocities  as  such  play  little  part  in  his  indictment.  The  one 
thing  that  really  interests  him  is  the  apphcation  to  the  existing 
conditions  in  Church  and  State  of  the  fundamental  principle 
from  which  he  started,  the  principle  of  popular  sovereignty. 

As  that  principle  guided  him  in  his  critical  stud}?"  and  in  his 
assault  upon  the  prevaiUng  evil  of  his  time,  so  it  furnished  the 
leading  idea  in  his  constructive  suggestions.  The  remedy  was 
to  be  found  in  an  honest  and  thorough  reorganization  of  the 
church  administration  from  the  bottom  upward.  The  begin- 
ning must  be  made  by  the  civil  authorities  because  they  were 
the  only  element  of  the  Christian  society  fitted  to  take  the 
initiative.  But  they  must  proceed,  to  use  the  language  of 
present  day  reform,  by  going  over  the  heads  of  the  existing 
church  powers  and  appeahng  directly  to  the  People.  The 
instrument  of  this  appeal  must  be  the  General  Council,  and 
this  must  be,  no  longer  an  assembly  of  clergymen  called  at  the 
good  pleasure  of  the  centralized  papacy,  but  a  truly  represen- 
tative body,  built  up  on  lines  of  territorial  and  class  representa- 
tion, including  laymen  and  directed  through  the  whole  process 
of  its  assembling  and  its  dehberations  by  the  highest  ci^'il 
authority.  Its  decrees  must  be  certified  and  vaUdated  by  its 
own  sanctions,  and,  so  far  as  they  were  concerned  with  affairs 
of  this  world,  must  be  enforced  by  the  civil  power. 

In  this  great  popular  assembly  was  vested  the  true  unity  of 
Christendom.  For  practical  purposes,  however,  a  central 
organ  of  administration  was  desirable.  To  this  end  the  ancient 
and  honorable  See  of  Rome  was  especially  indicated.     Marsig- 


MARSIGLIO  OF  PADUA,  DEFENSOR  PACIS  75 

lio  is  ready  to  go  all  lengths  in  his  admiration  for  the  splendid 
traditions  of  pure  doctrine  and  noble  ser\dce  that  made  the  real 
claim  of  Rome  to  the  respect  of  Christians.  Her  leadership, 
founded  upon  actual  historical  grounds,  might  be  compatible 
with  his  doctrine  of  popular  right.  What  he  could  not  admit 
was  that  this  leadership  rested  upon  any  ground  whatsoever 
which  could  make  it  independent  of  that  final  control.  Rome 
must  be  brought  down  from  its  theoretical  primacy  to  its  origi- 
nal level  as  the  servant,  not  the  master  of  the  Christian  com- 
munity. According  to  this  conception  the  bishop  of  Rome 
was  to  be  the  executive  agent  of  the  supreme  Council.  His 
very  election  was  to  be  dependent  upon  its  action;  for  the 
electoral  body  was  to  be  appointed  by  it  and  no  longer  selected 
by  his  own  free  choice. 

Now,  it  is  obvious  that  however  admirable  such  a  constitu- 
tion of  the  Church  might  be,  however  well  adapted  to  meet  the 
crying  needs  of  the  social  order,  it  was  not  the  papal  constitu- 
tion. Its  Head,  however  dignified  and  useful,  was  not  a  pope. 
The  specifically  Roman  character  of  the  whole  institution  was 
gone.  The  Petrine  tradition  which  gave  and  gives  still  the 
quality  of  a  divine  commission  to  the  authority  of  the  Roman 
bishop,  was  shattered.  In  place  of  all  this  was  to  be  a  rather 
vague  universalism  lacking  in  all  the  heroic,  the  dramatic,  and 
the  emotional  elements  that  worked  so  powerfully  in  the  Roman 
appeal. 

It  remains  to  notice  very  briefly  the  fate  of  the  Defensor  Pads 
and  its  influence  upon  the  development  of  pohtical  theory  and 
practice.  Almost  immediately  after  its  presentation  to  the 
emperor  it  seems  to  have  become  rather  widely  known  to  both 
friends  and  enemies.  Papal  condemnations  followed  in  rapid 
succession,  while  on  the  other  hand  the  imperial  lawyers  were 
employing  arguments  apparently  borrowed  from  the  Defensor. 
Ludwig's  whole  activity  during  the  fatal  years  1327-1328  was 
Uttle  more  than  the  carrying  out  into  practice  of  MarsigUo's 
doctrines  of  a  universal  elective  monarchy  resting  upon  the 
will  of  the  people.  The  fantastic  performance  of  an  imperial 
coronation  at  Rome  at  the  hands  of  officials  representing  the 
populus  romanus,  which  in  turn  represented  the  universitas 


76  MARSIGLIO  OF  PADUA,  DEFENSOR  PACTS 

civium  of  the  Christian  commonwealth,  was  the  dramatic  but 
momentary  realization  of  the  Paduan's  dream.  Its  almost 
immediate  collapse  was  the  proof,  if  proof  were  needed,  how 
far  ahead  of  his  time  was  this  prophet  of  a  new  era  freed  from 
the  cramping  Umitations  of  the  age  just  drawing  to  a  close. 

In  the  course  of  Ludwig's  tortuous  policy  of  alternate  defi- 
ance and  submission  he  makes  every  sort  of  formal  promises  to 
repudiate  his  evil  counsellors,  but  without  ever  taking  any 
practical  steps  to  this  effect.  If  Marsiglio  survived  the  Roman 
fiasco  of  1328,  there  is  no  reason  to  believe  that  he  suffered  any 
actual  inconvenience  from  his  repeated  condemnations  by  the 
Papacy  or  from  the  feeble  protestations  of  his  imperial  patron. 

It  is,  however,  quite  intelligible  that  other  and  later  writers 
on  the  same  or  related  topics  should  have  been  cautious  about 
using  the  name  of  a  thrice  condemned  heretic  to  support  their 
own  opinions,  and  this  may  well  explain  the  absence  of  specific 
references  to  Marsigho  in  writers  who  otherwise  give  every 
indication  of  knowing  his  work  and  of  being  influenced  by  it. 
A  notable  early  indication  of  this  is  found  in  the  chief  work  of 
Lupoid  of  Bebenburg,  bishop  of  Bamberg,  written  probably 
in  1340.^  In  a  strictly  legal,  formal  argument  Lupoid,  a 
canonist  of  repute,  aims  to  establish  the  right  of  the  Roman 
king  and  emperor  as  independent  of  papal  sanction.  The 
translatio  im'perii  from  the  Greeks  to  the  German  Franks  was, 
to  be  sure,  made  by  Pope  Leo  III,  but  not  in  virtue  of  any 
inherent  papal  right.  It  was  effected  only  casualiter  on  a  great 
critical  occasion  when  no  other  tribunal  was  entitled  to  act 
(c.  xii).  The  electoral  right  has  now  become  embodied  in  the 
college  of  the  German  electors.  The  person  elected  by  them, 
or  by  a  majority  of  them,  becomes  king  and  administrator  of 
imperial  rights  in  Italy  and  other  provinces  subject  to  the 
empire.  He  needs  no  nomination  or  confirmation  from  the 
pope  or  from  the  Roman  church.  The  oath  to  the  pope  taken 
at  coronation  is  not  a  feudal  oath  but  a  pledge  of  loyal  protec- 
tion. In  these  doctrines  we  have  the  very  spirit  of  Marsiglio's 
teaching  on  the  same  subject.     The  main  purpose  of  the  two 

'  Tractatus  dejuribus  regni  et  imperii,  ed.  Herold,  Basel  1562.  See  also  Meyer, 
H.,  Lupoid  von  Bebenburg,  Studien  zu  seinen  Schriften,  1909. 


MARSIGLIO  OF  PADUA,  DEFENSOR  PACIS  77 

treatises  is  the  same :  the  defense  of  the  imperial  power  against 
the  claims  of  the  Roman  See.  That  the  later  does  not  quote  the 
earlier  by  name  cannot  obscure  the  essential  similarity  of  the 
two.  The  omission  is  sufficiently  explained  by  the  natural 
reluctance  of  the  clerical  writer  to  identify  himself  in  any  way 
with  so  pestilent  a  controversiahst  as  Marsiglio.  Lupold's 
treatise  was  the  formulation  in  legal  terms  of  ideas  which 
already  two  years  before,  in  1338,  had  found  their  practical 
expression  in  the  enactments  of  the  German  Electoral  Union 
at  Reuse  and  in  the  imperial  decree  '^  Licet  jurist  The  lan- 
guage of  these  famous  documents  marks  the  highest  point  of 
the  unstable  Ludwig's  resistance  to  papal  aggression. 

If  we  think  of  Ludwig  as  animated  throughout  by  personal 
hostility  to  the  power  which  had  steadily  opposed  his  most 
cherished  schemes  of  political  and  dynastic  ambition,  we  can 
certainly  have  no  such  conception  of  the  man  who  came  to  the 
imperial  throne  over  the  ruins  of  the  Bavarian- Wittelsbach 
pohcy.  Charles  IV,  the  Luxemburg-Bohemian  rival  and  suc- 
cessor of  Ludv/ig,  was  distinctly  the  candidate  of  clerical  inter- 
ests. "King  of  the  Parsons"  and  ''The  Pope's  Errand-boy" 
were  among  the  nicknames  designed  to  throw  contempt  upon 
this  apparent  deserter  from  the  true  imperial-German  cause. 
And  yet,  in  that  monumental  document,  the  "Golden  Bull"  of 
1356,  this  same  Charles  IV  set  his  hand  to  the  most  positive 
declaration  yet  made  of  the  absolute  right  of  the  German 
electoral  college  to  create  the  King  of  the  Romans  and  to  invest 
him  with  all  imperial  powers  without  reference  of  any  kind  to 
any  outside  power  whatsoever.  The  Golden  Bull,  henceforth 
to  be  the  corner  stone  of  the  German  constitution,  is  the  practi- 
cal embodiment  of  Marsiglio's  theories  of  a  poUtical  society. 

We  have  seen  that  Marsiglio  was  acutely  conscious  of  the 
fact,  that  in  championing  the  cause  of  imperial  independence 
he  was  fighting  the  battle  of  national  integrity  everywhere. 
If,  he  says,  this  plenitudo  potestatis  is  to  be  carried  out  to  the 
consequences  already  foreshadowed  by  the  aggressive  policy 
of  Boniface  VIII  and  John  XXII,  then  every  human  sover- 
eignty is  in  danger.  How  sound  this  estimate  was  is  clearly 
shown  in  the  affairs  of  England.     The  work  of  John  WycUffe, 


78  MARSIGLIO  OF  PADUA,  DEFENSOR  PACIS 

beginning  almost  at  the  moment  of  the  publication  of  the 
Golden  Bull,  was  from  the  first  identified  with  the  interests  of 
English  nationality  as  opposed  to  foreign  clerical  domination. 
Wycliffe's  fundamental  proposition,  developed  in  his  most 
important  and  most  elaborate  treatises  ^  involved  the  whole 
problem  of  ^^ Dominium"  to  which  we  have  already  referred. 
Among  the  heresies  of  Marsiglio  his  views  on  this  subject  took  a 
prominent  place.  These  views,  hardly  more  than  outlined  in 
the  Defensor  Pads,  were  expanded  by  WycUffe  at  portentous 
length.  As  a  political  theorist  Marsigho  was  primarily  inter- 
ested in  establishing  the  right  of  civil  government  to  a  hfe  of 
its  own  independent  of  any  outside  control.  Wychffe,  as  a 
philosopher  and  theologian,  was  chiefly  concerned  with  fixing 
the  conditions  of  the  ecclesiastical  order.  He  came  to  the 
question  of  the  relation  between  church  and  state  from  the  side 
of  the  church.  He  saw,  more  clearly  than  any  one  before  him, 
that  the  crucial  problem  was  the  nature  of  the  Church's  right  to 
deal  with  the  goods  of  this  world  as  represented  by  the  income 
from  the  vast  properties,  which  under  one  or  another  form  had 
slipped  into  its  administrative  control. 

In  other  words  he  was  led  to  that  fundamental  distinction 
between  the  spiritualia  and  the  temporalia  which  occupied  so 
important  a  place  in  Marsiglio's  definition  of  terms.  The 
arguments  of  the  Defensor  may  in  this  respect  be  regarded  as 
prolegomena  to  Wycliffe's  Dominium.  So  comprehensive  is 
this  word  in  Wycliffe's  thought,  that  it  covers  pretty  much 
the  whole  range  of  theological  speculation.  The  mere  posses- 
sion of  earthly  goods  is  but  an  item  in  the  larger  concept  of  a 
rule  founded  in  the  order  of  a  divinely  controlled  universe. 
Marsiglio  had  drawn  in  sharply  cut  phrase  the  basic  definition 
of  the  spiritual  and  the  temporal,  but  he  had  offered  no  test  by 
which  in  a  specific  case  the  right  of  control  over  temporal  things 
was  to  be  determined. 

That  test  it  remained  for  WycUffe  to  supply.  He  found  it  in 
his  doctrine  of  "Righteousness,"  the  keynote  of  his  whole 

'  Johannis  WycUffe  de  dominio  divino  libri  tres,  ed.  R.  L.  Poole,  1890. 
Johannis  WycUffe  Iractatus  de  civili  dominio  Uber  primus,  ed.  R.  L.  Poole,  1885; 
11.  ii-iv,  ed.  J.  Loserth,  1900-1904. 


MARSIGLIO  OF  PADUA,  DEFENSOR  PACIS  79 

theological  system.  God,  he  says,  as  the  supreme  righteous- 
ness, is  lord  of  all  things.  All  other  lordship  is  derived  from 
this  ultimate  source.  Only  the  righteous  man  can  be  conceived 
of  as  having  a  right  to  any  lordship  at  all.  If  any  man  fail  in 
righteousness  he,  in  so  far,  forfeits  his  right  of  lordship.  What 
had  appeared  to  be  such  must  then  be  treated  as  only  a  hmited 
right  of  use,  not  of  absolute  ownership.  Righteousness,  accord- 
ing to  Wy cliff e,  is  the  state  of  grace  into  which  a  man  is  brought 
by  a  divine  process  independent  of  his  own  activity.  Domi- 
nium, therefore,  is  Hmited  to  the  elect.  Any  person  outside 
that  body  is  by  this  fact  deprived  of  any  claim  to  lordship. 

So  far  we  are  deahng  with  speculative,  theological  definitions, 
but  when  we  come  to  their  practical  apphcation  we  leave 
theology  and  enter  the  realm  of  hard,  work-a-day  poHtics. 
The  critical  problem  for  WycUffe  as  for  Marsiglio  is  found  in 
the  question:  Supposing  a  pope  is  not  among  the  elect,  what 
then?  Obviously  he  can  have  no  dominium.  But,  who  is  to 
determine  the  fact  of  his  unrighteousness?  In  answering  this 
question  Wycliffe,  like  all  otheis  before  and  since  who  have 
grappled  with  it,  is  obhged  to  fall  back  upon  the  evidence  of 
personal  conduct.  If  a  pope  so  conduct  the  business  of  his 
great  office  as  to  offend  the  common  sense  of  Christendom,  then 
Clu"istendom  as  a  whole  has  the  right  to  treat  him  as  lacking  in 
the  divine  gift  of  righteousness  and  may  proceed  to  discipline 
him  for  his  offence.  Wycliffe's  argument  here,  freed  from  its 
almost  impenetrable  tangle  of  scholastic  involution,  follows 
very  nearly  the  lines  of  Marsiglio's  thought.  He  does  not,  so 
far  as  I  know,  refer  to  him  by  name,  but  the  resemblance  is 
unmistakable,  and  the  conclusion  is  irresistible  that  WycUffe 
had  before  him  the  text  of  the  Defensor  Pads. 

Thus  fairly  launched  on  its  career  as  a  reformatory  pamphlet 
Marsiglio's  work  penetrates  every  attempt  at  church  reform 
made  during  the  five  generations  between  Wycliffe  and  Luther. 
It  came  to  be  one  of  the  stock  charges  made  against  every  leader 
of  reform  that  he  was  repeating  the  heresies  of  WycUffe  and 
through  him  those  of  Marsiglio.  Even  though  the  reformer 
himself  made  no  allusion  to  his  fourteenth  century  predecessor, 
and  may,  indeed,  have  been  more  or  less  unconscious  of  the 


80  MARSIGLIO  OF  PADUA,  DEFENSOR  PACTS 

debt  he  owed  him,  the  sure  instinct  of  the  still  dominant  but 
now  thoroughly  frightened  Church  pointed  unerringly  to  the 
essential  continuity  of  ideas  from  Marsiglio  onward. 

As  soon  as  lists  of  prohibited  writings  began  to  be  pubhshed 
the  Defensor  Pads  figured  prominently  among  those  of  the 
worst  class.  Its  place  in  this  honorable  company  was  firmly 
established  by  the  Council  of  Trent  in  the  Index  librorum  pro- 
hibitorum  of  1558.  During  the  sixteenth  and  seventeenth  cen- 
turies several  editions  of  the  Defensor  appeared  in  France  and 
Germany,  the  last  at  Frankfurt  in  1692.  The  motive  back  of 
the  earliest  editions  was  mainly  hostility  to  the  papal  power 
rather  than  interest  in  theories  of  the  state.  In  the  later  edi- 
tions the  political  motive  predominates.  This  is  shown  by  the 
incorporation  of  the  Defensor  in  the  great  collection  of  Goldast 
which  bears  the  title:  The  Monarchy  of  the  Holy  Roman 
Empire  or  Treatises  on  the  Imperial,  Royal  and  Pontifical 
Jurisdiction,  Frankfurt,  1614-1668. 

Every  modern  writer  on  political  theory  has  given  to  Marsig- 
ho  some  consideration,  but  seldom  a  space  proportioned  to  the 
importance  of  his  work.  It  is,  therefore,  a  matter  of  congratu- 
lation that  the  administration  of  the  Monumenta  Germaniae 
Historica  has  decided  to  publish  what  is  Hkely  to  be  for  a  long 
time  to  come  the  definitive  text  of  the  Defensor  Pads  and  has 
entrusted  the  work  to  the  scholar  who  appears  at  present  to  be 
best  prepared  by  prehminary  studies  to  undertake  it.  It  is 
to  be  hoped  that  the  obscurity  which  has  so  long  rested  on  this 
extraordinary  book  will  at  last  be  lifted  and  that  it  will  take 
its  rightful  place  among  those  forces  that  have  worked  most 
powerfully  in  the  making  of  the  modern  world.  For  the 
Defensor  Pads,  made  under  the  stress  of  a  specific  conflict 
remote  in  time  and  apparently  of  sHght  importance  at  the 
present  day,  yet  deals  with  principles  of  human  organization 
of  permanent  and  decisive  value.  In  a  time  Uke  this,  when  the 
right  of  the  common  man  to  a  voice  in  the  making  of  the  laws 
under  which  he  is  to  live  is  being  claimed  more  widely  and  more 
insistently  than  ever  before,  it  must  seem  most  opportune 
that  the  work  in  which  this  doctrine  is  first  clearly  put  before 
the  peoples  of  modern  Europe  is  to  be  given  a  form  suited  to  its 


MARSIGLIO  OF  PADUA,  DEFENSOR  PACIS  81 

importance.  Certainly  American  democracy,  if  it  is  to  work 
out  the  mission  with  which  it  seems  to  be  entrusted,  cannot 
afford  to  refuse  the  support  or  to  neglect  the  warnings  it  may 
derive  from  a  study  of  MarsigUo's  ardent  plea  for  a  Peace  of 
the  world  based  upon  a  just  balance  of  social  classes. 


Date  Due 


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